Whether carpark an approved use - Provision of parking spaces required by Town Planning Scheme.

Statutory prosecution - Whether estoppel available by way of defence - Estoppel by conduct or approval - Notion of unconscionability.

Canterbury Club Inc v Christchurch City Council [1986] NZHC 142; (1986) 11 NZTPA 417

Davenport v Waverley Municipal Council (1981) 46 LGRA 97

Municipality of Devenport v Spence Products Pty Ltd 20 LGRA 65

Southend-on-Sea Corporation v Hodgson (Wickford Ltd) [1962] 1 QB 416

The appellant was convicted in the Court of Petty Sessions at Perth on 24 July 1997 in respect of an offence against s10(4)(a)(i) of the Town Planning and Development Act 1928 ("the Act"). The appellant was fined the sum of $5,000 with a further daily penalty totalling $1,765 and was ordered to pay the complainant's costs of $1,762.

By leave granted on 25 August 1997 this appeal is brought against that conviction.

The complaint was made by an officer of the respondent. In these reasons I will not usually distinguish between the respondent and its Council. The complaint alleged that between 25 January 1996 and 13 January 1997 the appellant used the land (being Lot 11 on strata plan 16095, corner Rowland Street and Barker Road, Subiaco within the district of the City of Subiaco):

"...otherwise than in accordance with a use approved by the Council of the City of Subiaco in accordance with the City of Subiaco Town Planning Scheme No 3 - District Zoning Scheme and hence contravened the Scheme, contrary to s10(4)(a)(i) of the Town Planning and Development Act 1928".

While there was some unresolved exchange of correspondence between those representing the parties before the hearing of the complaint seeking clarification by way of particulars of the uses approved by the respondent and the identification of the actual approval decision (to which I will return later in these reasons) it was made clear at the hearing below by counsel for the respondent when opening the prosecution case that it was the case for the respondent that the relevant approval was that given in 1976 on an application for the approval of a development on the land which now comprises strata plan 16095 including what is now Lot 11. Both Lot 11 and the whole of the land on that strata plan have frontages to Barker Road in Subiaco and are divided by Rowland Street. The development approval was granted on 18 March 1976 in respect of an application dated 9 January 1976 for the total of the land which later became subject to strata plan 16095 to be developed by extending an existing shopping centre by constructing a self-contained restaurant and function centre. The development approval was conditional inter alia on the amalgamation of all the then lots into one and required that "parking spaces to be provided for a total of 32 cars plus one car for every four seats provided in the restaurant."

At that time the land which included what is now Lot 11 was subject to the respondent's Town Planning Scheme No 1 ("TPS No 1"). Under TPS No 1 the land was zoned as "town centre" pursuant to which zoning it was open to the Council to approve the use of the land for shops and a restaurant (it is not in dispute that a function centre is not to be distinguished from a restaurant). It should be noted that while under TPS No 1 a carpark was a distinct use class which could be approved by the respondent, the 1976 application did not seek approval for the use of the land or any part of it as a carpark, nor did the approval to commence development grant such approval. Instead, the condition attached by the respondent to the approval to the development comprising shops and a restaurant and function centre was one which required the provision of a number of parking spaces on the land the subject of the development. This condition satisfied the requirements of Part V of TPS No 1 which dealt with car parking and provided inter alia in cl 54:

"54. Subject to the provisions of clause 55 no person shall erect or use a building for a purpose specified in column number 1 of the parking space tabled hereunder unless paved parking spaces or garages ... with all necessary access ways are provided on the parcel of land on which the building is erected to the extent specified in column number 2 of the said table."

The parking space table immediately followed in cl 54 and two of the identified uses were shops and restaurants. For shops, the number of parking spaces required to be provided was one to every complete 20 square metres of floor area and for restaurants one to every four seats provided. By cl 61 plans for any proposed building development were required to show the position of all car parking spaces and access ways. The exhibits before the learned Magistrate show that this was complied with, the required parking spaces being shown on what has now become Lot 11. The development proceeded as approved, the required parking bays being provided on what is now Lot 11.

Before the learned Magistrate and before me there were submissions for the appellant that the 1976 approval was or included an approval by the respondent for Lot 11 to be used as a carpark. That is shown not to be the position. In 1976 the development was approved by the respondent on the condition that the developers provide the number of car parking spaces required by the Table in cl 54 which spaces were, by cl 54, required to be provided on the land the subject of the application. But the development then approved was not for a carpark, but for shops and a restaurant and function centre. The fallacy in the submission that the 1976 approval was, or included an approval to use the land as a carpark within the meaning of TPS No 1 is apparent from the terms of the application for approval, the terms of the respondent's approval and the terms and scheme of TPS NO 1, all of which have been sufficiently set out earlier. The fallacy involves a failure to observe the distinction between a use approved by the respondent (pursuant to TPS No 1) and a use which is merely incidental or subservient to an approved or dominant use; see Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 per Gibbs CJ at 216-217 which is discussed more fully later in these reasons. The distinction may readily be illustrated by reference to Use 1, "Dwelling House", in the Parking Space Table in cl 54 of TPS No 1. By that Table and Appendix 3 to TPS No 1 a minimum of two car parking spaces or garages were required to be provided on land approved for a dwelling house. An approval by the respondent for the development of land for a dwelling house which approval included a condition that two car parking spaces be provided on the land, would not, for the purposes of TPS No 1, constitute an approval by the respondent for the land to be used as a carpark. Of course cars could be parked on the land incidentally to the use of the land for a dwelling house, but the condition that two parking spaces or garages be provided would not constitute an approval by the respondent for the land to be used as a carpark in distinction from or in addition to its approved use for a dwelling house. Likewise, in respect of the land the subject of this complaint, the condition of the 1976 approval for it to be developed for shops and a restaurant and function centre, which required the provision of parking spaces to give effect to cl 54 of TPS No 1, did not constitute an approval for any use of the land other than for shops and a restaurant and function centre.

The failure to observe the distinction between an approval to use land as a carpark, and an approval to use land for some other purpose, eg for shops, incidentally to which use cars might be parked on the land, has affected the positions taken by the parties to the complaint before it was heard, the matter of particulars of the complaint, the conduct of the hearing below, the reason for decision of the learned Magistrate, the grounds of appeal and the arguments before me. It will be necessary for me, therefore, to return to this issue at a number of points in these reasons. When I do so it will be on the basis that there was not an approval by the respondent in 1976 to the use of the land the subject of the present complaint, Lot 11, as a carpark within the meaning of or for the purposes of TPS No 1. The only uses then approved were the uses of shops and of restaurant and function centre.

I should note that by cl 56 of TPS No 1 it was further provided:

"56. The Council may permit car parking spaces to be provided not on the site subject to the Council being satisfied that -

(1) the parking area is reasonably close to the buildings to be served and that legal right of use and access is granted to all users and occupiers of the buildings for which the car parking is to be provided;

(2) the aggregate number of spaces provided conforms to the required standard; and

(3) the amenity of the locality will be adequately served thereby."

While the last words of cl 56(1) would offer some confirmation of what might otherwise be implied from the existence and terms of Part V of TPS No 1, ie that it was contemplated that users and occupiers of the buildings for which development approval was given should be able to have access to and use of the parking spaces provided in accordance with Part V, TPS No 1 did not contain any express provisions, apart from cl 56(1), which sought to secure, implement or regulate in any practical way the achievement of any such objective.

In 1984 the respondent's Town Planning Scheme No 3 ("TPS No 3") came into force. It replaced earlier Schemes. Under this Scheme what is now Lot 11 the subject of the complaint and all of the land now the subject of strata plan 16095 was zoned as "shops". By virtue of the zoning table which was appendix 1 to TPS No 3, the zoning "shops" permitted the land to be used for eating house/restaurants, shops, consulting rooms, offices. No use of the land other than these was permitted by the zoning table "unless special consent is granted by the Council". TPS No 3 cl 3.20 required an application in writing to obtain the special consent of Council to use the land for other purposes mentioned in the list of use classes. Subject to the issue of the respondent's use of part of Lot 11 pursuant to a lease to which I will turn later, it is common ground that at no time has the respondent given its special consent under TPS No 3 to the use of the land the subject of the complaint for any other purpose (save for a tavern which is not material and is mentioned again later).

More strictly, while there is a definition of carpark in TPS No 3, it is not a use mentioned in the list of use classes. Therefore by virtue of cl 3.5.1 the use of Lot 11 as a carpark was, at the times material to the complaint, prohibited unless it was a use "permitted by subsequent provisions of the Scheme". Under those subsequent provisions the Council might, pursuant to cl 3.5.2, give its consent to a use not mentioned in the list of use classes, but by virtue of cl 3.5.3 the provisions of cl 3.20 also required an application in writing to the Council for that special consent. There was never any such application and no such consent has been given under TPS No 3.

The provisions of TPS No 3 subsequent to cl 3.5 also provide for additional use permits under cl 3.7, mixed uses under cl 6.1.2 and non-conforming uses under Part 10. The issue of non-conforming use is considered later in these reasons. Otherwise, it is not the case that any of the provisions subsequent to cl 3.5.1 had effect to permit or approve the use of Lot 11 as a carpark.

Those observations with respect to TPS No 3 should be understood in the context that it contained provisions substantially similar to those which I have described in TPS No 1 under which there were requirements for parking spaces or garages to be provided on land developed or used for a variety of specified uses which included shops and restaurants. Part 7 of TPS No 3 contained these provisions. Thus, in accordance with TPS No 3, it was a requirement that before a building could be used for shops or as a restaurant a prescribed number of parking spaces or garages with necessary access ways should be provided on the land (or in some cases on other land). I note that in TPS No 3 there was no provision equivalent to cl 56 of TPS No 1 which has been set out earlier in these reasons.

In May 1981 the respondent agreed to lease from its then owners (the developers in 1976) most of the land which later became Lot 11 on strata plan 16095. Lot 11 straddles Rowland Street. A small area comprising four parking spaces is to the east of Rowland Street, but the main area of Lot 11 is to the west of that street. The area to the west was that leased by the respondent in 1981. The lease was for a term of nine years with provisions for renewal. The lease was for a peppercorn rental. It was a term of the lease that the respondent use the land for the purpose of a carpark. From May 1981 until 13 November 1992, the leased area of what is now Lot 11 was used by the respondent pursuant to that lease as a carpark open to the public on payment of a fee. The leased area was in fact operated as a carpark by the respondent in conjunction with other immediately adjacent land. Thus, when TPS No 3 came into force in 1984, much of the land the subject of the complaint was actually being used by the respondent itself as a public fee-paying carpark.

It was in 1987 that the appellant purchased the land which became the subject of strata plan 16095, including Lot 11 the subject of the complaint. It was purchased from the 1976 developers. The appellant immediately strata titled the land so that each shop and the restaurant became the subject of distinct strata titles in accordance with strata plan no 16095. Lot 11 on that strata plan became a distinct lot. It comprised only the land on the west and east sides of Rowland Street which had been that part of the land the subject of the 1976 development approval on which there were provided the car parking spaces required by the 1976 development approval. Thus, in the respondent's contention - with which the appellant disagrees - (it not being necessary to decide the issue to determine this appeal) Lot 11, although the subject of a distinct strata lot, became the land on which there were provided the car parking spaces which allowed the use of the other lots on strata plan no 16095 as shops and as a restaurant pursuant to the requirements of Part 7 of TPS No 3.

The appellant then sold off all but two of the distinct lots on strata plan 16095. One of the two lots retained by the appellant was Lot 11. The respondent continued to use the main part of Lot 11 on the west side of Rowland Street for its public fee-paying carpark pursuant to the lease. The four parking spaces on Lot 11 on the east side of Rowland Street were reserved by the appellant and the evidence indicates that from 1988 onwards those four parking spaces have been in continuous use, being leased out by the appellant on a long-term basis for a fee.

The evidence indicates that since acquiring the land which is now the subject of strata plan 16095 in 1987 the appellants have made a number of applications for development approval to the respondent in respect of that land. Speaking generally, the evidence suggests that applications for any significant change to the existing development have not been successful, the lack of adequate provision for car parking being a, or the, reason for refusal. The evidence indicates there have been some minor amendments allowed which include the restaurant and function centre becoming a tavern. This is a use permitted by the zoning table with special consent of the respondent.

Evidence for the appellant before the learned Magistrate indicates that applications for more substantial changes to the development having failed, it was decided by the appellant in 1992 that it should give three months notice to the respondent of termination of the lease so regaining possession from the respondent of the leased part of Lot 11, ie the main part to the west of Rowland Street. That put an end to the use of that part of Lot 11 by the respondent, which had to remove its parking meters and make other adjustments to the layout. It seems that from that time in November 1992 until October 1994, the parking spaces on the part of Lot 11 to the west of Rowland Street were open to use by all-comers. No attempt to charge for or to control parking was made during that time.

In October 1994, however, the appellant introduced a system of charging for parking on the main part of Lot 11 to the west of Rowland Street. By letter dated 19 October 1994 the appellant informed the Parking Department of the respondent by facsimile "as a courtesy" that it would be "charging shoppers to park" in the carpark on Lot 11. The appellant had an attendant to collect fees each morning and to control those parking until the parking spaces were full. The evidence indicates this was usually achieved between about 7.30 am and 8.30 am each weekday morning. Usually a daily fee was charged, although the evidence indicates that in some cases weekly or monthly fees were collected, and in one case a six-monthly fee. Each week day morning, when the parking spaces were full, the attendant left for the day, so that should any parker who had paid for the use of a car parking space for a day vacate that space, there was no system to prevent another member of the public from parking in the space left vacant. The evidence also indicates that no attempt was made to control or charge for parking at weekends. The initial charging rate was $2 per day, or $10 per week. Any member of the public could park on payment of the fee. The system of charging for parking which I have just described is essentially that which was in place from October 1994 and during the period between January 1996 and January 1997 particularised in the complaint.

With respect to the system of charging the public at large to park on Lot 11 introduced by the appellant in late 1994, the evidence of a director of the appellant before the learned Magistrate was that since 1990 the respondent had been seeking to acquire that part of Lot 11 which was to the west of Rowland Street for the purpose of a public carpark and that while the appellant had been prepared to sell to the respondent (apparently on the basis that the sale to the City should be accepted on some basis as leaving the owners of the strata lots in compliance with the car parking requirements of Part 7 of TPS No 3 - perhaps by utilising inter alia cl 7.6 of TPS No 3 which allows development or use to be approved on the provision of cash in lieu of car parking spaces, that cash to be utilised by the City for the provision of public car parking) but that negotiations had always broken down over the value of this part of Lot 11. It was the evidence of the director that material to the question of value was the use that could be made of the land. In this connection it was the director's evidence that the respondent's contention in negotiations over value was that Lot 11 was unable to be developed by the construction of shops because it was required to be retained as it was to satisfy the requirement of the 1976 approval that parking bays be provided for the entire development now the subject of strata plan 16095. Even laid out for parking bays, the value of Lot 11 was affected, it was advanced in the director's evidence, according to whether it was for non-fee paying or fee paying parking.

It was the evidence of the director that the appellant having decided not to appeal from a decision of the City refusing approval to develop Lot 11 for shops, the decision was taken that:

"...the next use that we could put the land to was car-parking. So, we thought if we can charge fees for car-parking, then that's obviously going to be worth more as a fee-paying car-park than as a piece of land from which no income can be generated."

Thus it was the evidence of the director that use as a fee-paying car-park would not only generate income but enhance the value of Lot 11.

Before the learned Magistrate, and renewed before me, it was the submission for the respondent that, by introducing this system of charging for parking the appellant had changed the use to which it put Lot 11. After the introduction of the change in late 1994, and during the period relevant to the complaint, the four parking spaces on the part of Lot 11 that were to the east of Rowland Street were kept as private parking but let or leased by the applicant by period agreement and the parking spaces on the main area of Lot 11 to the west of Rowland Street were for much of each week used for the purpose of a public fee-paying carpark. It was the submission for the respondent as I understand it, that Lot 11, and for that matter the balance of the land which had been the subject of strata plan 16095, was (zoned and) approved for use as shops (including originally an approved use as a restaurant and function centre and more recently as a tavern) and this did not allow the use of Lot 11 as a carpark open to the public at large for a fee.

The appellant had a number of submissions in answer to the position of the respondent which I will deal with, particularly as I consider the grounds of appeal, but its primary position was that as the applicant was required by TPS No 3 and the development approval in 1976 to provide the car parking spaces which were on Lot 11, the use of Lot 11 as a carpark was necessarily approved or authorised pursuant to TPS No 3 by the respondent, and nothing in the text of the Scheme introduced any distinction between a fee-paying and non-fee-paying carpark. Hence, it is submitted that use of Lot 11 for a public fee-paying carpark cannot be a contravention of TPS No 3 and the Act as alleged in the complaint.

I have already indicated my rejection of the notion that the 1976 approval was or included an approval by the respondent for Lot 11 to be used for the specific or distinct use of a carpark, as opposed to it being used as approved for shops etc, incidentally to which use cars might be parked on it. In further amplification of my reasons for that rejection and to further consider these submissions of the appellant I would add the following.

The question of the use to which land is being put in the context of town planning schemes is a question which has long exercised courts and tribunals. In the authoritative passage in the reasons of Gibbs CJ in Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 at 216-217 there is the following review of the issue:

"The first argument, that the land was used for the purposes of a dwelling-house and nothing more, takes as its starting point the judgment of the Court of Appeal in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at p 161, where Glass JA said:

'It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts.'

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. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house. In those circumstances, some further remarks of Glass JA in Foodbarn Pty Ltd v Solicitor-General (supra) become apposite:

'Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others....'"

Given the requirements of Part V of TPS No 1 and Part 7 of TPS No 3 with respect to the provision of parking spaces for stipulated uses, it seems to me that all the land which was the subject of the 1976 development approval (and of course which became the subject of strata plan 16095, including Lot 11) was approved for use for the purpose of shops (including restaurant and later tavern). That was the approved use, the dominant use - even though part of the land was required to be set out to provide parking spaces. No distinct use of Lot 11 as a carpark was approved. Any use of the parking spaces originally required by the 1976 development approval and later by the terms of TPS No 3 had therefore to be incidental or subordinate to the approved use of shops (including restaurant and function centre or later tavern). Given the terms of the Schemes it would not matter if the car parking spaces provided were in fact used exclusively or variously by the management of the shops etc, or by staff or customers, or were available for use by the public generally, so long as the dominant use remained the approved use, viz shops (including restaurant and function centre or later tavern).

In my view the undisputed facts are such as to reveal, however, that a distinct use or purpose was introduced by the applicant in October 1994 when it introduced the system of charging the public at large for parking on Lot 11. This new use or purpose was that of raising revenue from Lot 11, not by virtue of any use incidental or subordinate to the approved use of shops (and by then tavern), but revenue from the use of Lot 11 as a carpark open to members of the public at large on payment of a fee. As indicated in the passage cited from Gibbs CJ in the Lizzio decision, the issue involves fact and degree. The factual issue is the dominant use to which the land is being put. It is not a question of whether from a planning viewpoint a particular use of the land should be allowed. That is a quite different issue, not relevant for present purposes, and one to which amenity is relevant. The submissions for the appellant did not distinguish between these.

Turning to the relevant factual issue from the introduction of the new system in October 1994, and relevantly during the period the subject of the complaint, the whole of Lot 11 to the west of Rowland Street was utilised as a public fee-paying carpark for a substantial part of each week and the whole of the remainder of Lot 11, ie the four car parking spaces to the east of Rowland Street was rented or leased out. On the undisputed facts before the Magistrate and before me, the conclusion necessarily follows that for a substantial part of each week the whole of Lot 11 was applied by the appellant to the purpose of raising revenue by charging the public at large to park on the land. Thus, having regard to the regularity and the extent to which the land was used by the appellants as a carpark open to the public at large on payment of a fee, it is, in my view, necessarily the case that during the period the subject of the complaint, Lot 11 was being put to a use distinct from that for which it was approved, a use which may be adequately described as a carpark (nb the definition in cl 1.7.1 of TPS No 3). Subject to the matters yet to be considered, in the circumstances that use would constitute a contravention of TPS No 3, and hence of s10(4)(a)(i) of the Act.

The view which I have expressed as to the use to which Lot 11 was put by the applicant during the period relevant to the complaint appears to be essentially that reached by the learned Magistrate when, in her reasons, she said:

"In this case, the land previously had parking bays provided by the developers for the use of shoppers and patrons of nearby shops and a restaurant, in conformity with Part 7 of the Scheme. It was subsequently used by the owner as a 'car park', which is a different use from that set out in the zoning table, appendix 1."

This passage from the reasons was the subject of some valid criticism in the submissions of counsel for the appellant, particularly the words which indicated that the parking bays provided by the developers were "for the use of shoppers and patrons of nearby shops and a restaurant". That is certainly not the express terms or effect of TPS No 1 or TPS No 3, or of the 1976 approval. Perhaps it may be said that the words quoted reflected in some way what may be discerned by implication to be a generalised objective of Part 7, but it takes the matter much too far to attach any such limitation to the use to which the required car parking spaces could be put. It does not appear to me, however, that erroneous interpolation by the learned Magistrate of such a limitation or purpose into the requirement for the provision of parking bays affects the validity of the conclusion revealed in the passage just cited from the reasons. Part 7 of TPS No 3, like Part V of TPS No 1, did require the provision of parking bays and they were provided in conformity of those requirements. Subsequently, for the reasons which I have spelt out, Lot 11 came to be used by the owner as a carpark. This was a use not authorised by the 1976 approval (as modified to allow a tavern), or by the zoning table of TPS No 3. This finding by the Magistrate appears to me, therefore, to be correct in its essential aspects notwithstanding the error which I have discussed. Subject to the issues yet to be considered, it is a finding which justifies the conclusion that the complaint before the learned Magistrate had been proved.

I turn now to consider the various specific grounds of appeal which are:

"(a) The Learned Magistrate erred in deciding the case on the basis that the use of the land approved by the City of Subiaco was 'for parking spaces ancillary to a restaurant and shops' when, in particulars furnished by the respondent (complainant) by letter from his solicitors dated the 5th day of May 1997 the respondent (complainant) advised the applicant (defendant) that the gravamen of the charge it was called upon to meet was that:-

"...the only use ever approved by the City of Subiaco for the land was that of non fee paying car park. The complainant alleges that the use for the purpose of fee paying car park is a different use to that of non fee paying car park and hence cannot be carried on without the approval of the City of Subiaco".

in which particulars the complainant made no allegation that the use approved by the City was limited to parking ancillary to a restaurant and shops. The Learned Magistrate thereby dealt with the case on a different basis to that which was alleged by the respondent (complainant) and which the applicant (defendant) had come to meet.

(b) The Learned Magistrate erred in finding (apparently) that the only use for which the land had been approved by the City of Subiaco was 'for parking spaces ancillary to a restaurant and shops' when:-

(i) for the reasons set out in the preceding ground, such a finding was outside the ambit of the complaint as particularised;

(ii) there was no evidence capable of sustaining such a finding;

(iii) alternatively to (ii) such a finding was against the weight of the evidence;

(iv) such a finding was in direct conflict with her express finding that:-

"The Council's actions in using the land as a public car park, for which a fee was charged, indicates that such a use at that time had Council's approval."

(c) The Learned Magistrate should have found, or alternatively should have acted upon her finding to the effect that the City's actions in using the land as a public car park for which a fee was charged constituted the grant of an approval by the city for the use of the land, with the consequence that use of the land for that purpose by the applicant (defendant) did not constitute the offence of using the land otherwise than in accordance with the use approved by the Council of the City of Subiaco.

(d) Alternatively to the preceding ground, the Learned Magistrate should have found that the city of Subiaco was estopped from denying that it had approved the use of the land as a public car park for which a fee was charged, given her finding that such was the manner in which the land was being used by the city itself pursuant to the express provisions of a lease of the land taken by the City at the time the applicant (defendant) acquired the reversionary interest in the freehold estate pertaining to the land in 1988.

(e) The Learned Magistrate erred in finding that she could not 'be satisfied that use of the land as a car park when it is zoned for shops is necessarily a non conforming use, as submitted by defence Counsel, because approval to use the land as a public car park for fees under clause 6.1.2 was never sought by the owner' when:-

(i) in so finding she appears to have reversed the onus of proof and imposed it upon the applicant (defendant) when at all times the burden of proof was upon the respondent (complainant) to establish the charge beyond a reasonable doubt;

(ii) clause 6.1.2 of the Scheme was irrelevant to the question of whether the land was being lawfully used for the purpose or in a manner not permitted by the Scheme upon its gazettal date and was therefore irrelevant to the question of non conforming use;

(iii) the fact that approval to use the land as a public car park for fees had never been sought by the owner compelled a precisely contrary conclusion to that arrived at by the Learned Magistrate -namely, that the use came within the non conforming use provisions of the Scheme.

(f) The Learned Magistrate erred in finding that the short term parking facilities which had previously been available to patrons of the shops and the restaurant '... ceased to be available once the use was changed to daily and weekly parking' when:-

(i) there was no evidence capable of sustaining such a finding;

(ii) alternatively such a finding was against the weight of the evidence;

(iii) such a finding was illogical in that if there was in fact demand to use the spaces for longer term parking, removal of a charge for the use of the space would be unlikely to discourage the persons using the area for longer term parking, but rather, would be more likely to encourage such use;

(iv) findings as to the period over which patrons used the car park were irrelevant to the complaint as particularised.

(g) Having found (and the complainant having brought the case on the basis that) use of the land for car parking was a use approved by the City, the Learned Magistrate erred in holding that the introduction of a fee for parking constituted a change in use such that the use went beyond the ambit of the approval.

(h) Alternatively to the preceding ground, having found, on the basis of the uncontradicted evidence before her, that as at the date of gazettal of the Scheme the land was being used as a public car park for which a fee was charged, the Learned Magistrate erred in failing to find that the respondent (complainant) had failed to establish beyond a reasonable doubt that the use of the land for the purpose by the applicant (defendant) was a non conforming use permitted pursuant to clause 10 of the Scheme."

The core point of the ground is that the charge which the appellant had to meet was particularised in a manner different from that upon which it was decided. The ground alleges the particulars were provided by a letter from the solicitors to the appellant to the respondent dated 5 May 1997.

That being the nature of the central issue raised by the ground, it is appropriate to start with the complaint itself which alleges a use of the land otherwise than in accordance with the use approved by the respondent. In opening the case for the respondent before the learned Magistrate, counsel for the respondent made it clear that the approval relevant on the complainant's case was the 1976 development approval. He put the complainant's case in these ways:

"... in 1994 the company changed the use of the car bay area, which is now strata Lot 11, from that of non fee paying bays for customers of the development across the road to a fee paying carpark situation...."

"It became an all day paying carpark ... a carpark use in its own right rather than car bays servicing a development...."

"So the basis of the prosecution is simply that the City has never approved the use of these 40 bays as bays comprising a fee paying all day carpark. They were approved as bays required under Town Planning Scheme No 1 to service the 1976 development. In other words, you had to have these car bays to have that development. And it is as simple as that. It may be that this current use could be approved in certain circumstances, but the defendant company has never applied for approval, and hence there has never been one. It simply commenced the use."

While in those observations there are clear signs of the erroneous notion that the effect of 1976 development approval was that the bays required under TPS No 1 were non-fee paying bays for customers of the approved development, it was made expressly clear that the case for the respondent also involved the propositions that from 1994 the use of Lot 11 became that of an all day paying carpark, a carpark use in its own right, and that the respondent had never approved that use. Further, any misunderstanding as to or mis-statement of the effect of the 1976 development approval was substantially corrected in the more particular statement set out in the last of the paragraphs quoted from the opening.

The correspondence between the legal representatives of the parties before the hearing was not referred to in opening, nor was that correspondence tendered before the learned Magistrate for the purpose of identifying particulars of the complaint. Part of that correspondence, including the letter of 5 May 1997 referred to in Ground (a), was tendered in evidence during the appellant's case before the learned Magistrate but, when the question was raised as to the basis upon which it was tendered, counsel for the present appellant did not raise the matter of particulars of the complaint but put the relevance on another footing. Thus it has not been shown that the case was fought before the learned Magistrate on the basis that the complaint was limited by particulars to be derived from the letter dated 5 May 1997.

Further, the parties have placed before me the series of letters exchanged between the parties before the hearing below. This included the letter dated 5 May 1997. A number of questions or requests for particulars were advanced on behalf of the appellant in that correspondence, some of them it seems were never answered. It is enough to observe that these matters were not raised at the hearing. The case for the complainant having been opened the hearing continued without reference to particulars. Thus it is not presently relevant what particulars could or should have been ordered below had it been objected for the appellant that it did not know the case it had to meet. That did not occur. Among other matters the correspondence focused on what approval was relied on by the complainant and its precise terms. Attention was paid to whether the terms of the approval relied on confined in some way the use to which the parking spaces on Lot 11 might be put to patrons of the shops which formed part of the original development. While this also occupied quite a degree of attention in the evidence and submissions before the learned Magistrate and before me, for reasons which I have already indicated, it is my view that is not the determinative point in this case.

In any event, an understanding by the appellant that the case against it involved the notions identified in the ground that the use approved by the City was that of a non-fee paying carpark or parking ancillary to the approved shops and restaurant, would not appear to have embarrassed the appellant in the conduct of its defence in such a way that could constitute a miscarriage of justice. It having been clearly shown in the course of evidence that the only approval relied on for the complainant was the 1976 development approval and it being the case that that approval was not conditioned so as to limit the use to which the parking spaces might be put, the appellant was nevertheless left to face the issue squarely raised by counsel for the respondent/complainant in the course of opening, that the use of Lot 11 for the purposes of a fee paying carpark in its own right from 1994 was a distinct use and a use which had never been approved by the respondent, ie whether by the 1976 approval or otherwise. It could not properly be said that the appellant was not on notice that the case against it involved such propositions, whatever else it may have been said to have involved.

Ground (a) also seeks to elevate to centrality in the reasoning of the learned Magistrate the last few words of a paragraph in the reasons which was in these terms:

"The Council's actions in using the land as a public carpark, for which a fee was charged, indicates that such a use at that time had Council's approval, however this was a different use from that for which the land was approved, namely for parking spaces ancillary to a restaurant and shops."

This passage occurs in a paragraph in which the learned Magistrate is dealing with a submission founded in the use of part of Lot 11 by the respondent pursuant to the lease as a public carpark. For that reason alone, it is clearly not "the basis" for the decision of the Magistrate as the ground alleges. The passage quoted above follows a direct reference by the Magistrate to Part 7 of TPS No 3 which is summarised by the words of the Magistrate that "Clause 7 sets out detailed conditions relating to the provision of car parking spaces in connection with various types of development". It appears to me, therefore, that the reference to parking spaces "ancillary to a restaurant and shops" has to be read in the context of the preceding more correct identification of the effect of cl 7 of TPS No 3. Incidentally, the correct reference should have been Part V of TPS No 1, although no point is made of this error and the difference between the two Schemes is not presently material.

Even if the learned Magistrate had in some way developed the 1976 approval condition which required the provision of parking spaces before the land might be used for a restaurant and shops into some form of restriction on, or definition of, the use to which the parking spaces might then be put, a view which I would not myself form from either TPS No 1 or the reasons of the learned Magistrate, it seems to me that a little later in the reasons the learned Magistrate came to deal with the real issue, namely whether the subsequent use of Lot 11 as a "carpark" was different from the approved use. I have discussed this already.

For these reasons I am not persuaded that there is substance in Ground (a).

This ground also focuses on what it describes as "apparently" the finding of the learned Magistrate that the only use for which the land had been approved was "for parking spaces ancillary to a restaurant and shops". For the reasons indicated when discussing this passage with respect to Ground (a), I would not be persuaded on a fair reading of the reasons that the passage relied on was intended by the learned Magistrate as a finding. The passage appears early in the reasons and immediately follows a consideration of Part 7 of TPS No 3 which is briefly summarised as setting "out detailed conditions relating to the provisions of car parking spaces in connection with various types of development". This appears to me to be a reasonably accurate summary of the effect of both Part 7 of TPS No 3 and Part V of TPS No 1. While the precise expression in the relevant passage may be criticised, I am not persuaded that it was intended to do more than indicate loosely and shortly the effect of the development approval in 1976.

Even if I have misunderstood the learned Magistrate in this respect and the passage in question did reveal a finding by the Magistrate, for the reasons given in respect of Ground (a), it seems to me that any such error has not led to a miscarriage of justice in the present case.

Four particular consequential points are made in the ground. The first of these turns again on the proposition that the prosecution was conducted on the basis of a particularised complaint which identified an approval different in terms from that identified in the "apparent" finding. For the reasons already given, I am not persuaded that the prosecution was conducted on the basis of such particulars or, even if it had been, that there has been a miscarriage. The second correctly submits that there was no evidence which could sustain the apparent finding and the third is that any such finding was against the weight of evidence. Correct as they are, they do not now avail the appellant for the reasons already given.

The fourth particular issue raised by Ground (b) turns on the statement set out in the ground from the learned Magistrate's reasons that the "Council's actions in using the land as a public car park, for which a fee was charged, indicates that such a use at that time had Council's approval". The submissions for the appellant seek to read this as a finding of approval by the respondent for the purposes of TPS No 1 or TPS No 3. It seems to me, however, that this passage in the reasons involves no more than the proposition that the Council must have decided to use Lot 11 as a public fee-paying carpark, and in that sense "approved" of that occurring. In my view the statement in its context, and having regard to the evidence led before the Magistrate, should not be understood as a finding that there was an approval under either TPS No 1 or TPS No 3 by the Council to the use of the land for a public fee-paying carpark. The use in question commenced in 1981 and was a use by the respondent itself. Both by virtue of s32 of the Act and by virtue of the terms of TPS No 1, the respondent was not required to have the approval of its own Council under TPS No 1 before it undertook a public work such as the provision of a public carpark. As a matter of fact and law there was no basis upon which it was open to the learned Magistrate to conclude that the Council of the respondent had granted approval in 1981 to the respondent under TPS No 1 to use the land now comprised in Lot 11, or any of that land, for a public fee-paying carpark. The actions of the respondent in so doing are actions independent of TPS No 1. In this respect the fourth point made for the appellant under Ground (b), in my view, misunderstands what was intended by the passage in the reasons on which the ground relies.

This seeks to raise differently what is substantially the same issue as the fourth point under Ground (b). It asserts that the actions of the respondent in using the land as a public carpark for which a fee was charged constituted a grant of an approval by the City for that use. Implicitly, the approval asserted by the ground must be approval under TPS No 1 (or perhaps later under TPS No 3). As a matter of law it appears to me to be a complete answer to this ground that it is the clear effect of s32 of the Act that the respondent's powers to undertake the public work involved in the provision of the carpark was not one which required the approval of the Council of the respondent under the terms of TPS No 1. Further, and given the terms of the Act, on the construction of TPS No 1 itself, it being the Town Planning Scheme of the respondent and its relevant prohibitions being in the form "no person shall", it appears to me that TPS No 1 does not contemplate the Council of the respondent approving its own public works. In this respect I note that TPS No 3 by cl 3.13.2 makes express what appears to me to be the necessary effect of TPS No 1 in this regard. Paragraphs (a) and (b) of s32 of the Act do require public works undertaken or provided to be in keeping with the design and intent of the applicable Town Planning Scheme, but this is only "so far as, in the interests of the public, it is reasonably possible" to do so and it is clear that those provisions are outside the operation of the relevant Town Planning Scheme itself.

Hence, there seems no basis in fact or law from which it may properly be asserted, as Ground (c) seeks to do, that the respondent's use of the land as a public fee-paying carpark constituted or evidenced the grant of an approval under and for the purposes of TPS No 1, or of TPS No 3, for the use of the land in that way. Nor in my view was the relevant passage in the reasons of the learned Magistrate directed to that issue.

The ground seeks to preclude by way of estoppel the respondent from denying that it had approved the use of the land the subject of the complaint as a public carpark for which a fee could be charged. The ground asserts, as a foundation for that estoppel, that this was the manner in which the land was used by the respondent itself pursuant to the lease at the time the appellant acquired the reversionary interest in the freehold in 1988 [sic 1987]. The evidence is unequivocal that no enquiries of any kind were made by the appellant at that time.

For the reason indicated with respect to Ground (c) and the fourth point of Ground (b), this ground involves the proposition that use by the respondent of the land required an approval of that use by the Council under the respondent's Town Planning Scheme, whether that be TPS No 1 or later TPS No 3. That is not the case.

What is advanced by this ground is an estoppel by conduct or implied representation. It is not suggested that there was any express representation. That being the case the appellant cannot have the advantage by way of estoppel of its own mistake or inadequate knowledge of law in the present circumstances where the respondent has not by its conduct induced that mistake or caused that inadequate knowledge. It is only by virtue of its own mistake or error of law that it could have interpreted the actions of the respondent in conducting a fee-paying public carpark on the land as a representation that that use was an approved use of the land pursuant to TPS No 1 or the then current TPS No 3. For this reason alone the ground fails.

The appellant further submits that an estoppel is available to it by way of defence to a statutory offence because the issue is one of "consent" or "approval" by the respondent pursuant to TPS No 3. For this proposition the appellant relies on a passage from the reasons of Windeyer J in Brickworks Ltd v Shire of Warringah [1963] HCA 18; (1963) 108 CLR 568 at 577. That decision concerned circumstances remarkably different from the present. The company had applied to a Shire Council for its consent to the use of land for extracting clay and shale. It received in reply a document headed "Land Use Consent" which stated that the Council consented to the application subject to certain conditions. The document bore the initials of the Shire Deputy Town Planning Officer and was signed by the Shire President. The company acted on this approval and commenced extraction. In later letters written by the Council its consent to the original application was assumed. At a later time, however, the Council sought to restrain the company from further extracting clay and shale and for the first time raised that it had not consented and that the document originally sent was an unauthorised document. It may be observed that a stronger factual basis for an estoppel could hardly be imagined. The issue arose in the context of civil proceedings between the Council and the defendant, not in the context of a prosecution for a statutory offence. Even so, the case was not decided on the basis of estoppel. The two Justices who formed the majority decided the case on the basis that the document headed "Land Use Consent" gave rise to a presumption that the Council's consent had been given, a presumption strengthened by the Council's subsequent actions, which presumption was not rebutted by the evidence in the case, nor by the absence of a minute of the decision to consent from the Council's minute book; alternatively, even if the land use consent had been signed by the President and sent without prior consideration by the Council, the Council had failed to prove that it had not consented to the application after the date of that document. Only one of the Justices dealt with the issue of estoppel. At 577 Windeyer J said:

"The case, as I see it, does not depend upon an estoppel, but on actual admissions of the facts. The Council said that it had consented. Until it spoke by the mouth of its lawyers it never said otherwise. But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems to me to arise. The Council did not at any time before it commenced this suit repudiate what its President had told the company. In effect it repeated it. And the company relied upon the purported consents. Does this not found an estoppel? It was argued that it could not do so because estoppel by representation cannot prevent the performance of a statutory duty or the exercise of a statutory discretion. There is no doubt about the principle; but I doubt its application to this case. The decision of the Court of Appeal in Southend-on-Sea Corporation v Hodgson (Wickford Ltd) [1962] 1 QB 416 was relied on. The facts of that case do bear a superficial resemblance to those of this case. But there is a distinction. There the corporation had, by its engineer, said that its permission for the use of the land as a builder's yard was not in fact and law required. It was mistaken in this view; and it was held that what the engineer had said could not create an estoppel preventing the corporation from exercising its statutory discretion to forbid the land being used as a builder's yard. That is to say, the corporation had in effect said to the respondent company there, 'You do not need our permission; we have no discretion to prevent your action'. In the present case, on the other hand, the Council said in effect, 'You do need our permission; we have a discretion which we have exercised in your favour;'. It seems to me that, in the circumstances of this case, the Council was estopped from denying that it had exercised its discretion in the manner it had said it had done. The case is not, as I see it, one in which a consent once given could be withdrawn. That could only, I think, be so if the consent were expressly given upon condition that it might be withdrawn in specified events. And, moreover, it is not now said that consent was given and later withdrawn. The allegation now is that it was never given".

In my respectful view there is reason to doubt the availability of estoppel by way of defence to a charge of a statutory offence despite the observations of Windeyer J, albeit by way of obiter dictum, in the Brickworks Ltd decision. As the decisions in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387 and The Commonwealth v Verwayen (1990) 170 CLR 394 make clear, the foundation underlying estoppel is the concept of unconscionability; cf Verwayen at 411. The position was summarised by Mason CJ in Verwayen at 413 in this way:

"The result is that it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but not more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A critical element of that doctrine is that there must be proportionality between the remedy and the detriment which is its purpose to avoid."

The notions of unconscionability and proportionality of remedy to detriment are relevant and adapted to civil proceedings in which the conduct of, and the competing interests of, the opposing parties may be weighed and compared so that justice may be done between them. In a statutory prosecution the court is not concerned to be dealing with the private interests of the opposing parties. At issue is the public interest in the enforcement of the statute. The Parliament has determined what conduct shall constitute a breach of the law it has made and Parliament has determined what "defences" will be available to a defendant on such a prosecution. There appears to me to be fundamental difficulty in the way of a court seeking to prevent or modify the operation of the law enacted by the Parliament to provide in some way relief to the defendant against a sense of "unconscionability" arising from actions of an administering authority or its officers or agents. That is especially so where, as in the case of prosecutions under the Act, the party before the court as complainant need have no connection whatever with the administering authority so that any unconscionable conduct might not be on the part of the complainant or an authority which the complainant represents but by a stranger to the proceedings. For that reason, on the submission of the present appellant it could depend on the fortuitous circumstance of the identity and office of the complainant whether a defendant would have available a "defence" of estoppel. That must be unsatisfactory as a matter of principle and contrary to the intention of the legislature in constituting the offence.

Further, in the context of statutory and criminal offences, the common law and statute have provided a context for dealing with the type of issues to which estoppel is directed. These differ in form, purpose and effect from estoppel in the civil context because different considerations are relevant. While it may be unconscionable in some circumstances for a party who has been misled by another on a question of law to be held to the true legal position in the resolution of a private dispute between those parties (and it is now accepted that estoppel will be available even where the mistaken assumption is as to a legal state of affairs; see Verwayen at 413), it is a principle of the criminal law encapsulated in s22 of the Criminal Code of this State, which is applicable to the present offence by virtue of s36 of the Code, that ignorance of or mistake as to the law does not afford an excuse. Further, s24 of the Code provides for a "defence" of an honest and reasonable but mistaken belief as to a state of facts - but not of law. This too is applicable to the present offence. To give effect to the submissions regarding estoppel advanced for the appellant in reliance on the obiter dictum of Windeyer J in the Brickworks Ltd decision would appear to have the effect of modifying or frustrating the operation of the legislative structure provided by these provisions.

Further, even in the civil context, an estoppel cannot be relied on if the result of giving effect to it would be something that is prohibited by the law: Formosa v Secretary, Department of Social Security [1988] FCA 291; (1988) 81 ALR 687 at 695-6. Much the same point perhaps is made by Newton J in Commonwealth of Australia v Burns [1971] VicRp 100; [1971] VR 825 at 830:

"A party cannot be assumed by the doctrine of estoppel to have lawfully done that which the law says that he shall not do....".

See also Roma Electric Light & Power Co Ltd v Hair [1955] St R Qd 311; North West County District Council v J I Case (Aust) Pty Ltd [1974] 2 NSWLR 511; Mulcahy v Hoyne [1925] HCA 17; (1925) 36 CLR 41. In the present case an effect of the appellant's claimed reliance on estoppel is that the appellant should be acquitted and so be able to continue to use the land as a public fee-paying carpark even if it be the case that such use is prohibited by TPS No 3 and the Act.

Even if I am wrong as to the availability in law of estoppel to the appellants by way of defence to the present complaint, there are other difficulties which preclude acceptance of the appellant's submission. First and foremost, I can find no trace in the case advanced by the appellant before the learned Magistrate of the issue of estoppel. The case was conducted before a Magistrate, not a jury. If estoppel was relied on it should have been specifically raised. It was not. Instead, the appellant pursued unsuccessfully the defence of mistake relying on s24 of the Criminal Code. That having failed below, the appellant now seeks to rely on estoppel. Further, while certain facts were adduced in evidence which are now relied on in support of the estoppel submission, at the hearing before the learned Magistrate those facts appear to have been advanced as relevant to the issues or "defences" of non-conforming use and of mistake pursuant to s24 of the Criminal Code. No doubt for that reason, but in any event, I am unable to see that there were any express findings on the part of the learned Magistrate in her reasons that would support the argument of estoppel now advanced. Essentially the appellant's submissions turn on the passage in the reasons which I have quoted earlier, that the respondent's actions in using the land as a public fee-paying carpark "indicates" that this use had the Council's approval. It is contended this should now be accepted as constituting a finding of representation by conduct. As I have indicated previously I do not read that to be a finding that the Council had approved that use pursuant to either of its Town Planning Schemes. Nor am I able to read into it a finding that, by virtue of that representation by conduct, the appellant in fact held the view that Lot 11 or the whole land had been so approved for use as a carpark when the appellant acquired the land in 1987, or in 1994 when it commenced to use Lot 11 for a fee-paying public carpark, or at the commencement of or during the period January 1996 to January 1997 alleged in the complaint.

There is no evidence that the plaintiff purchased the land for the purpose of using it or part of it as a fee-paying public carpark. In fact the evidence is clear this was a purpose which was formed some years after the land was acquired by the appellant. The decision to use the land for that purpose was first put into effect in October 1994. The appellant had known since 1990 of the development application in 1976 and the terms of the decision of the Council of the respondent in respect of that application. While the appellant was aware that the land had been leased by the respondent and used as a fee-paying public carpark, the appellant was also aware of, and had expressly considered and formed its own views about, the terms and effect of TPS No 3 with respect to the question whether the land the subject of the complaint might lawfully be used by it as a fee-paying public carpark. Further, the applicant had taken its own legal advice about that question and was aware that the advice it had received differed from the view held by the respondent. It was the evidence of the director of the appellant called before the learned Magistrate that the decision of the appellant to use the land as a fee-paying public carpark from October 1994 was made in view of the legal advice it had received and the director's own reading and views of the effect of TPS No 3.

Given these matters, it seems to me that it would not have been open to the learned Magistrate, on the evidence led before her, to form the view that the appellant used the land as a carpark during the period alleged in the complaint, because it held a belief induced by the respondent's earlier use of the land under the lease that the Council of the respondent had approved that use pursuant to either TPS No 1 or No 3. Nor was it open to the Magistrate to conclude on some other more loose basis that the appellant's use of the land for the period of the complaint was in the belief induced by the respondent's earlier use of the land under the lease that the land might lawfully be used by the appellant as a fee-paying public carpark. Rather, the only factual view open on the evidence is that, encouraged by the fact that the respondent had made such a use of the land during the period of the lease, the appellant satisfied itself on its own legal advice and its own view of the effect of TPS No 3 that it could itself lawfully conduct a public fee-paying carpark, notwithstanding the known fact that the respondent held a different view of the legal position. At the most, the appellant's conclusion as to the effect of TPS No 3 may in part have depended on reasoning which drew on the respondent's earlier use of the land pursuant to the lease. But that is not enough to found an estoppel. That is simply part of the reasoning of the appellant for the view which it formed, notwithstanding the Council's known opposite view, that it could lawfully use the land for a fee-paying public carpark.

A further difficulty in the way of the appellant's reliance on estoppel is the absence of any evidence as to detriment which the appellant has suffered in virtue of the reliance it contends it has made on the fact of the respondent's earlier use of the land pursuant to the lease. The appellant made no physical change to the property when in October 1994 it commenced to use it as a fee-paying public carpark. There is no evidence to establish that it incurred any expense in implementing that decision or that in some way it disrupted its other affairs to its disadvantage. There is no evidence of detriment in respect of that use as a carpark at any time relevant to the period alleged in the complaint. The incurring of a penalty for a breach of the Act can hardly satisfy the requirement of detriment for the purpose of estoppel.

For these reasons it seems to me that the plaintiff's submissions in respect of estoppel cannot succeed and that this ground must be dismissed.

"10.1 Continuance of Non-Conforming Uses: If at the gazettal date of any land, building or structure is being lawfully used for a purpose or in a manner not permitted by the Scheme (hereinafter referred to as a 'non-conforming use') the non-conforming use may continue subject to the following restrictions - [four restrictions are then specified which are not presently relevant] -

or the Council may for the purpose of regulating the erection, alteration or extension of a building or buildings used in conjunction with a non-conforming use determined such requirements as it thinks necessary to secure the amenity, health or convenience of the area in addition to or substitution for any of the foregoing.

10.2 Discontinuance: Subject to clause 10.3, if after gazettal date a non-conforming use is changed or is discontinued for a period of six months or more, a person shall not thereafter use the land or any building or structure thereon on or in which the non-conforming use was carried on for a purpose not permitted by the Scheme."

Because the complaint alleged that the appellant used the land so as to contravene the Scheme, the appellant contends that the respondent necessarily had the onus of satisfying the learned Magistrate to the required standard that there was no provision of the Scheme by which the appellant's use was authorised or permitted. In support of this the appellant relied in particular on Macarone v McKone; Ex p Macarone (1985) 56 LGRA 305, especially per Macrossen J (as he then was) at 311-312, and City of Brighton v Eura Nominees Pty Ltd (1983) 56 LGRA 262 per Gobbo J at 270. The second of these decisions is not in the context of a prosecution and appears to turn on the presumption of regularity. The Macarone decision is more directly in point. As the reasons Williams J in that decision, particularly at 317-321 reveal, the issue involves the common law principle of long-standing which was considered by Dixon CJ in Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136 at 139-140 where it was said:

"...The argument treats the case as governed by the common law doctrine that where a statute having defined the grounds of some liability it imposes proceeds to introduce by some distinct provision a matter of exception or excuse, it lies upon the party seeking to avail himself of the exception or excuse to prove the facts which bring his case within it. The common law rule distinguishes between such a statutory provision and one where the definition of the grounds of liability contains within itself a statement of the exception or qualification, and in the latter case the law places upon the party asserting that the liability has been incurred the burden of negativing the existence of facts bringing the case within the exception or qualification....The question, however, where in such cases the burden of proof lies may be determined in accordance with the common law principle upon considerations of substance and not of form. A qualification or exception to a general principle of liability may express an exculpation excuse or justification or ground of defeasance which assumes the existence of the facts upon which the general rule of liability is based and depends on additional facts of a special kind. If that is the effect of the statutory provisions, considerations of substance may warrant the conclusion that the party relying on the qualification or exception must show that he comes within it".

As is revealed in the decision of Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 the common law principle is equally applicable to civil and prosecution proceedings. It was that decision which was relied upon by Heenan J in Daniele v Shire of Swan, unreported; SCt of WA (Heenan J); Library No 970064; 21 February 1997 when at 8, his Honour in dealing with the provisions of a different Town Planning Scheme said to have been contravened, concluded that it was necessary under that Scheme for the defendant to show that a non-conforming use was lawful before reliance could be placed on the non-conforming use by the defendant in answer to the complaint. Before me the respondent relies on that decision. This issue is not a simple one. The offence charged is the contravention of TPS No 3. Clause 3.5.1 of TPS No 3 provides that a use not mentioned in the list of use classes of the zoning table is prohibited "unless it is permitted by the subsequent provisions of the Scheme". "Carpark" is not a use mentioned in the list of use classes of the zoning table. Clause 10.1 is a subsequent provision and it permits a lawful use at the gazettal date to continue (subject to discontinuance under cl 10.2).

Not developed in argument before me was the relevance and effect of s72 of the Justices Act 1902. Section 72 would have potential operation to the prosecution before the learned Magistrate by virtue of s46(1) and s5, definition of "subsidary legislation", of the Interpretation Act 1984. The issue is whether the phrase in cl 3.5.1 of TPS No 3 "unless it is permitted by the subsequent provisions of the Scheme" is an exemption or exception within the meaning of s72 of the Justices Act. For that reason it is fortunate that it appears to be unnecessary to reach a final view in respect of this issue to deal adequately with this appeal.

The non-conforming use relied upon in the submissions of the appellant before me and before the learned Magistrate was the use by the respondent between 1982 and 1992 of the land for a public fee-paying carpark pursuant to the lease mentioned earlier in these reasons. That was a use which, as at the gazettal date in 1984 of TPS No 3, was a use permitted by TPS No 3 because it was a public work undertaken by the respondent, a local authority, pursuant to s32 of the Act. That is the effect of s32 of the Act and it was also an express term of TPS No 3; see cl 3.13.2(g). Thus, while the respondent's use of the land at that date was lawful within the meaning of cl 10.1 of TPS No 3, that use was not "for a purpose or in a manner not permitted by the Scheme" within the meaning of cl 10.1. Hence the use was not a non-conforming use for the purpose of cl 10.1. It appears to me that that is sufficient to dispose of all contentions for the appellant based on the non-conforming use provisions of TPS No 3.

The same result appears to be reached even if one were to accept that the use of the land by the respondent for a public fee-charging carpark as at the gazettal date in 1984 was a non-conforming use within the meaning of cl 10.1, because what cl 10.1 authorises is that "the non-conforming use may continue". In the context of the Act and the Scheme it appears to me to be a material element of that use that it was a use by the respondent itself as the local authority for the area. For that reason I would not construe cl 10.1 as authorising a land owner or occupier, not being the local authority, to use the land for a non-conforming use to which the local authority itself was putting the land at the gazettal date.

Further, the particular passage in the reasons of the learned Magistrate which gives rise to the question of whether it involves a reversal of onus as asserted in the ground, is one in which the Magistrate was considering the effect of cl 6.1.2 of TPS No 3. The parties are agreed, and it seems clearly to be the case, that this clause was not relevant to the determination of the complaint. It allows the Council to permit "mixed" uses in certain circumstances. On the facts there is no basis for concluding that there was any permission ever granted by the Council of the respondent pursuant to cl 6.1.2 in respect of the land the subject of the complaint. For that reason the actual passage, even if it be assumed to reveal an error as to the onus of proof, does not vitiate the validity of the conviction.

This paragraph in the reasons is, however, the only discussion of the issue of non-conforming use. It provides, therefore, a basis for the appellant's submission that the learned Magistrate failed properly to deal with the question of non-conforming use and in effect failed to appreciate the true relevance of that issue. With respect to that submission, for the reasons which I have expressed, the issue of non-conforming use could not have been determined in favour of the appellant in any event and, therefore cannot avail the appellant in this appeal.

Thus, the conviction is not vitiated by the matters raised by this ground.

This ground draws principally on a passage in the last full paragraph of the reasons of the learned Magistrate. It is contended in support of the ground that the passage reveals a misunderstanding and error on the part of the learned Magistrate as to the terms and effect of the development approval in 1976 in that it should be read as revealing an acceptance by the Magistrate of the proposition that the parking spaces required to be provided by the condition to that approval were required to be available to patrons of the shops and the restaurant the subject of the approval. From that premise it is contended that the passage further reveals that the learned Magistrate then reasoned, erroneously, that the availability of those facilities to patrons of the shops and the restaurant ceased once the appellant introduced the fee-paying public carpark use in October 1994. The submission is that this reasoning reveals that the Magistrate relied on a wrong view of the effect of the 1976 approval to conclude that there was a new use introduced in October 1994.

I do not read this last paragraph of the reasons as relating at all to the decision of the learned Magistrate earlier in the reasons that by the introduction of the public fee-paying carpark in 1994 there was introduced a different use of Lot 11 as a "carpark". The paragraph which contains the words relied on, appears to be directed to a quite different issue namely the rejection of a most significant submission put for the defence at the hearing before the learned Magistrate, which was in effect that the prosecution was not bona fide. The paragraph commences with an express reference to this submission. In part, this submission was founded in the evidence led for the appellant which contended that the respondent was motivated to ensure that the land could not be used for a fee-paying carpark so as to reduce the value of the land which the respondent was interested in acquiring. Before the learned Magistrate the submissions for the appellant in this respect ranged to include the view that the prosecution was not in the public interest because what was being done by the appellant in using the land as a fee-paying public carpark did not have any adverse effect on adjacent businesses. The observations that followed in the reasons and which contain the words relied on in the ground, appear to me to be by way of a short expression of reasons for rejecting those contentions for the appellant. In my respectful view there may well be reason to question the accuracy of some of the observations as to the effect in practice of the land being used as a fee-paying public carpark, given the evidence led below, but for the reasons given earlier in this decision, those observations do not appear to me to affect the validity of the conclusion reached earlier in the reasons of the learned Magistrate that in the period the subject of the complaint (and from October 1994) Lot 11 was being put to a distinct and unapproved use by the appellant as a carpark.

The ground was developed on two bases. The first is that the learned Magistrate found as a matter of fact that the use of the land as a carpark was a use approved by the respondent. Once again this relies on the passage quoted earlier that the Council's action in using the land as a public carpark, for which a fee was charged, "indicates" that such a use at that time had Council's approval. As I have set out earlier in these reasons, in my view this passage was not intended and should not be read as a finding that the Council had approved or permitted the land to be used as a carpark pursuant to the provisions of either TPS No 1 or TPS No 3. The second basis once again raises the matter of particulars. What has been said earlier in these reasons is sufficient to dispose of this ground. In particular I would repeat that whereas there was some reliance for the respondent before the learned Magistrate on, and some particularisation which involved, the notion that the 1976 development approval in some way restricted the use to which the required parking spaces on the land might be put, the respondent's case before the learned Magistrate also proceeded on the basis that the use of Lot 11 during the period the subject of the complaint was a distinct use as a carpark which use had not been approved.

This raises again the issue of non-conforming use and the onus of proof. For the reasons given in respect of Ground (e), this ground cannot be resolved in favour of the appellant.

As my observations have revealed, the reasons below may be criticised for some deficiencies of expression and thought, although in a number of respects these deficiencies may well have been induced or encouraged by the way the case was conducted by the parties. Despite these deficiencies, I have been persuaded, for the reasons given, that the appeal should not succeed. Whatever may be said of the deficiencies I am persuaded there has been no substantial miscarriage of justice; Justices Act s199(1)(b). The appeal will be dismissed.