PAVLINOVICH BULK TRANSPORT PTY LTD -v- SHIRE OF KALAMUNDA [2011] WASC 234 (6 September 2011)

3 The charge against the appellant was that between 5 August 2009 and 20 January 2010 (both dates inclusive) at 17 Maud Road Maida Vale, the appellant used land within the Shire of Kalamunda Town Planning Scheme No 3 (the scheme) scheme area for the parking of commercial vehicles without all approvals required by the said scheme having been granted and issued by the Shire of Kalamunda thereby contravening cl 11.4.1(b)(ii) of the scheme, contrary to s 218(a) of the Act.

4 The charge was heard in the absence of the appellant pursuant to s 55 of the Criminal Procedure Act 2004 (WA). Subsections 55(4) & (5) provide as follows:

(4) If under subsection (2) or section 51(8)(a) the court decides to hear and determine the charge in the accused's absence and the prosecution notice is signed by a person who in the notice purports to be a person acting under section 20(3), the court

(a) must presume, in the absence of evidence to the contrary

(i) that the prosecution notice was signed by a person who was acting under section 20(3); and

(ii) that the person had the authority to sign the prosecution notice;

and

(b) may take as proved any allegation in the prosecution notice containing the charge that was served on the accused.

(5) If under subsection (4) the court convicts the accused

(a) the prosecutor must state aloud to the court the material facts of the charge;

(b) section 129(4) applies; and

(c) in the absence of evidence to the contrary, the court must take as proved any facts so stated.

5 The grounds of appeal contained in the appeal notice filed in this matter are as follows:

1. There has been a miscarriage of justice because the relevant alleged provisions of the relevant planning scheme were not authorised by the relevant provisions of the Planning and Development Act 2005 (WA), and were therefore invalid.
2. There has been a miscarriage of justice because the relevant alleged provisions of the relevant planning scheme intruded into a field intended to be covered by the Local Government Act 1995 (WA), s 3.25 and sch 3.1, and were therefore invalid or inoperative.
3. The sentence imposed by the learned magistrate was manifestly excessive.

Particulars

The seriousness of the offence and the circumstances in which it was committed did not warrant a fine of $100,000, costs of $3,595.70 and penalties of $16,900.

6 On 4 March 2011, Hall J ordered that the applications for leave to appeal be heard at the same time as the appeal.

7 The appeal came before me on 17 May 2011. Following the hearing of the appeal, I caused to be sent a request to the parties to provide supplementary submissions in relation to the following two matters:

(a) Whether it is of any significance as to the validity of the charge that the owner of the land is Mr Pavlinovich and not the appellant; and

(b) given the definition of 'commercial vehicle parking' in cl 1 of sch 1 of the scheme, does the prosecution notice disclose an offence known to law?

8 Both parties filed supplementary submissions as requested. The appellant, by its supplementary submissions, sought to add two new grounds of appeal:

2A. The Magistrates Court made an error of law in confusing the appellant with its director, when they are separate and distinct persons, and are required to be so treated in respect of any criminal responsibility the applicant may have.

2B. There has been a miscarriage of justice because, having regard to the alleged material facts as asserted by the prosecutor at trial, the conviction entered by the Magistrates Court is unreasonable and cannot be supported.

9 In light of the supplementary grounds of appeal sought to be argued by the appellant, I requested that the matter be relisted before me.

10 The appeal is pursuant to s 8 of the Criminal Appeals Act 2004 (WA). Section 8(1) provides:

(1) An appeal may be made under this Division on one or more of these grounds

(i) made an error of law or fact, or of both law and fact;

(ii) acted without or in excess of jurisdiction;

(iii) imposed a sentence that was inadequate or excessive;

(b) that there has been a miscarriage of justice.

11 Leave can only be granted on a ground of appeal if the court is satisfied that a ground has a reasonable prospect of succeeding: Criminal Appeals Act, s 9(2). This means that the ground should have a rational and logical prospect of succeeding: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473.

12 Pursuant to s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

13 The appellant failed to appear before the magistrate on the hearing date on 4 November 2010. This was the eighth time the matter had been before the court. Mr Pavlinovich, who was the sole director of the appellant company, telephoned the court on the morning of 4 November 2011 requesting a further adjournment on the basis he was away working as a truck driver. The magistrate, understandably, refused the adjournment and proceeded to deal with the matter under s 55 of the Criminal Procedure Act in the absence of any officeholder or representative of the appellant. The transcript records the following exchange between the magistrate and the prosecutor.

This matter will proceed in his absence. It needs to be brought to a head, in my view, and not (indistinct) further. Adjournment:- again noted there has been no formal application to adjourn, simply a telephone call. On that basis, the adjournment is refused. Are you seeking a (indistinct) section 55?

PROSECUTOR: We are, your Honour, yes.

HIS HONOUR: I will hear the facts then.

PROSECUTOR: Thank you. The accused's company, Pavlinovich Bulk Transport Pty Ltd, operates a commercial vehicle transport business on the land at 17 Maud Road, Maida Vale. The land is identified as the principle place of business in the accused's company records. The land is owned by the sole director of the accused's company, Mr Pavlinovich.

The accused's company operates a significant commercial transport business which has four employees and a number of large commercial vehicles at that address. The land is zoned special rural and is surrounded by rural residential types of properties. On 5 April 2008, the shire wrote to Mr Pavlinovich in relation to a complaint that the land was being used for the park of commercial vehicles without planning approval.

On 9 May 2008 the shire received an application for approval to park vehicles on the land. On 28 May 2008 the shire wrote to Mr Pavlinovich requesting more information in relation to that application and payment of the application fee of $150. The shire did not receive a response to its letter of 28 May 2008 or any other correspondence from the accused thereafter.

Following further complaints being received, the shire on 10 September 2009 wrote to Mr Pavlinovich again advising that the property was being used unlawfully for the parking of commercial vehicles and requiring that the use immediately stop and not recommence. However, further inspections of the property revealed that the use of the property for the parking of commercial vehicles had not ceased.

On 20 January 2010 an officer of the shire attended the property and took photographs. The inspection revealed that the property contained five commercial vehicles, trucks, seven trailers, one bobcat, 28 sealed drums of 205 litres each, a padlocked sea container which had not been approved either, and considerable damage to the surface of the road and verge. The inspection also revealed a significant workshop with various tools, equipment and car parts associated with the servicing of commercial vehicles.

While on site the shire officer telephoned Mr Pavlinovich to ask whether he would like to the site to discuss the matter. He replied that he was too busy. While on the telephone Mr Pavlinovich was asked several questions by the shire. He was asked whether he had ever received a planning approval from the shire or any written correspondence stating that he was authorised to carry out this development. He advised that he had not.

He advised that he had started the truck business approximately 13 years ago and had resided at this property for approximately eight years. Mr Pavlinovich said that he owned all the vehicles on the property except for one which was hired. He also stated that there was a workshop on the property which is used for the maintenance of the vehicles. He was asked whether he intended to continue parking the commercial vehicles on his property and he advised that he did intend to continue that use.

He advised that he had been looking around for alternative premises but could not afford anything. As a result of the accused's use of the land neighbours have had to put up with significant noise issues arising from the commercial vehicles being used as early as 5.30 am in the morning. Noise was also created by virtue of employees coming and going from the property in their vehicles and the use of equipment such as generators, pressure washes and vehicle maintenance equipment.

As mentioned before, the accused company employs a number of truck drivers for its own trucks and other truck drivers with their own trucks also park their vehicles on the land. The use of the land also results in neighbours having headlights of commercial vehicles being shone into their residences in the early hours of the morning.

The appearance of the land is also inconsistent with the zoning of the area. The surrounding properties are small, rural lots designed to accommodate rural residential living, whereas the subject land has the appearance of a property being used for a significant industrial purpose. The weight and volume of commercial vehicles used on the, land and going to and from the land has also caused significant road, kerb and verge damage, directly adjacent to the land.

The shire also considers the land to be unsafe and that it is used for the storage of large drums of diesel and oil in close proximity to nearby properties. There are no apparent measures being taken to prevent contamination of the shire's ground water reserves from leaking of fuel, oil, solvents and other chemicals used on the vehicles, and there was also the risk of fire associated with the storage of these chemicals.

On subsequent occasions when the shire has attended the premises to speak with Mr Pavlinovich, he has behaved in a threatening and aggressive and abusive manner towards the shire's employees, and has also been acting in a threatening manner towards his neighbours. Pursuant to the Shire of. Kalamunda Town Planning Scheme Number 3, it is unlawful to carry out development without prior approval of the shire. In this case the use of land for the parking of commercial vehicles and, in effect, using the property as a transport depot is an unlawful use.

Can I hand up some photographs now, please, your Honour? There are quite a number but it's a fairly large-scale development. Thank you, your Honour. You will note from the photographs the scale of the vehicles being used. Also the accused has established a (indistinct) system within the property to enable that depot to operate. Obviously it is a fairly significant commercial enterprise being undertaken.

...

The accused has contravened the shire's scheme for a period of several years despite being advised in early 2008 that the use of he land at that time was unlawful. The accused is clearly aware of this requirement because in response to the shire's correspondence he made an application for planning approval the following month. The use is still ongoing to this day, notwithstanding the fact that the application was never approved. Mr Pavlinovich had continued contact with the office of the shire. The accused has continued to carry out a very significant commercial operation at the property.

14 Before dealing with each of the grounds of appeal, it is necessary to set out the relevant provisions of the Act and the planning scheme which it was alleged the appellant had contravened.

15 Section 69 of the Act provides:

(1) A local planning scheme may be made under this Act with respect to any land -

(a) with the general objects of making suitable provision for the improvement, development and use of land in the local planning scheme area; and

(b) making provision for all or any of the purposes, provisions, powers or works referred to in Schedule 7.

(2) With those objects a local planning scheme may provide for planning, replanning, or reconstructing, the whole or any part of the local planning scheme area.

16 The Shire of Kalamunda Town Planning Scheme No 3 came into operation on 22 March 2007 on being published in the Western Australian Government Gazette. By virtue of s 87(4) of the Act, a land planning scheme when approved by the Minister and published in the Western Australian Government Gazette has the full force and effect as if it were enacted by the Act.

17 The purposes of the scheme are stated in cl 1.5 of the scheme as follows:

The purposes of the Scheme are to

(a) set out the local government's planning aims and intentions for the area;

(b) set aside land as reserves for public purposes;

(c) zone land within the scheme area for the purposes defined in the scheme;

(d) control and guide land use and development;

(e) set out procedures for the assessment and determination of planning applications;

(f) make provisions for the administration and enforcement of the scheme; and

(g) address other matters contained in schedule 7 of the Planning and Development Act 2005.

18 Clause 11.4.1(b)(ii) of the scheme, which it was alleged the appellant contravened, provides that a person must not use any land within the scheme area unless all approvals required by the scheme have been granted and issued.

19 The property at 17 Maud Road Maida Vale was zoned special rural within the scheme. Clause 4.2.2 of the scheme describes the objectives of this zone as:

• To enable smaller lot subdivision to provide for uses compatible with rural development.
• To retain amenity and the rural landscape in a manner consistent with orderly and proper planning.

20 Clause 5.10 of the scheme states that the special rural zone 'provides for small rural lots to accommodate uses compatible with rural residential living'. The clause includes provisions concerning retaining vegetation and planting further trees to improve environmental functions and provide screening for privacy and landscape amenity.

21 The scheme provides a number of different types of rural zones other then special rural. These other rural zones provide for larger lots of land. Included in these other zones are rural agriculture and rural composite which permit commercial rural activities.

22 The scheme contains a table of categories of use for each zone within the scheme. The uses are classified as either 'P', 'D', 'A' and 'X'.

23 'P' means that the use is permitted by the scheme providing the use complies with the relevant development standards and requirements of the scheme; 'D' means that use is not permitted unless the local authority has exercised its discretion by granting planning approval; 'A' means the use is not permitted unless the local government council has exercised its discretion by granting planning approval after giving special notice in accordance with cl 9.4 (which sets out requirements for notices and advertising); and 'X' means a use that is not permitted by the scheme.

24 In relation to the special rural zone, one of the categories of use is 'commercial vehicle parking' which is given a 'D' classification of permitted use, that is, the use is not permitted unless the local government council has exercised its discretion by granting planning approval.

25 'Commercial vehicle parking' is defined in cl 2 of sch 1 of the scheme as meaning 'the parking of a commercial vehicle for more than two consecutive hours or for a longer period then is necessary to load and unload, or for a longer period then is necessary to complete a service being rendered to the property'.

26 In considering whether approval will be given for commercial vehicle parking, the local government is required to consider matters set out in cl 10.2 (see note to cl 4.3.3). Clause 10.2 includes such considerations as:

...

(i) the compatibility of a use or development with its setting;

(j) any social issues that have an effect on the amenity of the locality;

...

(n) the preservation of the amenity of the locality;

...

(p) whether the proposed means of access to and egress from the site are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles;

(q) the amount of traffic likely to be generated by the proposal, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety.

27 Clause 5.20.1 of the scheme provides as follows:

Notwithstanding any other provision in the Scheme to the contrary, determination of Commercial Vehicle parking shall be generally in accordance with local government's Policy Statement on 'Parking of Commercial Vehicles on Private Property'.

28 The Policy Statement on 'Parking of Commercial Vehicles on Private Land' sets out a number of conditions which must be complied with before an application for approval will be successful. These conditions include the following:

(a) a limitation on the size and number of vehicles;

(b) parking must not damage road, kerb or footpaths;

(c) the maintenance and cleaning of the vehicles is restricted to certain periods of the day and the materials used for washing the vehicles are limited to water and mild detergent.

29 Further, the council will seek opinions from affected landowners before any decision on the application is made. All applications are considered in the light of any potential impact the proposal is likely to have on residential amenity, in terms of the neighbourhood in general or nearby lots in particular.

30 The appellant does not challenge the validity of the scheme generally, but contends that a restriction on parking of commercial vehicles on special rural zoned land is outside the scope of the Act. The appellant's counsel submits that the restriction on commercial vehicle parking relates specifically to unsightliness when commercial vehicles are parked on special rural land. It is submitted that such a restriction constitutes a breach of a fundamental right of quiet enjoyment by the owner of the land on which the vehicles are parked and such a breach of fundamental rights is not permitted by the Act. The ground of appeal appears to be based upon a rule of statutory interpretation that a statute should not be construed as overthrowing fundamental principles, infringing rights or departing from the general system of law unless it does so with irresistible clearness Thornton v Newcrest Mining Ltd [2011] WASCA 92 [22]; Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277, 304; Electrolux Home Products Pty Ltd v The Australian Workers' Union [2004] HCA 40; (2004) 221 CLR 309 [21] (Gleeson CJ); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 [15].

31 By way of analogy, the appellant's counsel relied upon the decision in Davis v The Commonwealth [1988] HCA 66; [1988] 166 CLR 79, which concerned a challenge to restrictions contained in the Australian Bicentennial Authority Act 1980 (Cth). The legislation was introduced for the purpose of planning and promoting a national programme of celebration and activities relating to Australia's bicentenary of European settlement. The restrictions included a requirement that the consent of the Bicentennial Authority was required before the use of certain terms in a business, trade, profession or occupation. The restrictions included the use without consent of such terms as 'bicentennial', '200 years', 'Australia', 'Sydney', 'Melbourne' and 'first settlement'. Mason CJ, Deane and Gaudron JJ (with whom other members of the court agreed) stated [33], [34]:

The illustrations given in the two preceding paragraphs indicate that the effect of the provisions is to give the Authority an extraordinary power to regulate the use of expressions in everyday use in this country, though the circumstances of that use in countless situations could not conceivably prejudice the commemoration of the Bicentenary or the attainment by the Authority of its objects. In arming the Authority with this extraordinary power the Act provides for a regime of protection which is grossly disproportionate to the need to protect the commemoration and the Authority. It is therefore no answer to say that the Authority's power to refuse written consent is exercisable only for the purpose of ensuring such protection, assuming that to be a permissible construction of s.22(1).

Here the framework of regulation created by s.22(1)(a) with s.22(6)(d)(i) and (ii) reaches far beyond the legitimate objects sought to be achieved and impinges on freedom of expression by enabling the Authority to regulate the use of common expressions and by making unauthorized use a criminal offence. Although the statutory regime may be related to a constitutionally legitimate end, the provisions in question reach too far. This extraordinary intrusion into freedom of expression is not reasonably and appropriately adapted to achieve the ends that lie within the limits of constitutional power [33] [34]. (emphasis added)

32 However, in this case the scheme is dealing with town planning issues which by their nature necessarily must impose restrictions and limitations on what persons can do on parcels of land in order for the planning objectives to be achieved. Without such restrictions, a planning scheme could not work. Our cities and towns would be developed with chaos and conflict. For example, no resident in suburbia could be protected from a neighbour running a noisy trucking business next door.

33 In Costa v Shire of Swan [1983] WAR 22, Olney J considered the validity of a town planning scheme within the meaning of the predecessor to the current legislation (Town Planning and Development Act 19781980). Subject to the qualification that the planning scheme must be a scheme as the term is understood under the legislation and must be validly approved, his Honour stated:

With these two qualifications, the scope for town planning schemes is as wide and diverse as the ingenuity of planners is able to contemplate. The Act contains no prohibition affecting the nature of planning nor the manner of development (24 25).

34 Even if the purpose of the scheme was to restrict the parking of commercial vehicles solely for appearance sake, as contended by the appellant's counsel, that restriction is not of such a nature as to attack fundamental rights and nor does it constitute an extraordinary intrusion into the right of quiet enjoyment so as to be unreasonable and inappropriate. In view of the stated purpose of the special rural zone to maintain the amenity of the area, a restriction on the parking of commercial vehicles so as to prevent unsightliness is not a major intrusion and not a fundamental infringement. In my view, such a restriction is within the scope of the objects of the Act.

35 In any event, to classify the zoning restriction concerning commercial vehicle parking as going only to appearance is an inappropriately narrow view of the nature of the restriction. It is clear from the provisions of cl 10.2 of the scheme, containing the criteria for granting consent, that the restriction imposed is designed to protect the rights of other land users within the special rural zone, including their right to enjoy the amenity of the rural surrounds and the development of the special rural zone in harmony with the natural environment. The use of the land within the zone by commercial vehicle parking (as defined), potentially creates a disharmony with the objectives of the scheme for the zone by virtue of the noise created (potentially at all hours), the appearance of the vehicles, the presence of large sheds, the use of chemicals and the storage of fuel.

36 Further, it should be noted that the scheme does not contain a blanket restriction on commercial vehicle parking, but provides for such commercial vehicle parking to be allowed if approval is obtained. Such a procedure ensures that any commercial vehicle parking within the zone is compatible with the intended land use within that zone. Although, in the case of Davis, the High Court did not consider the mechanism of consent as a sufficient safeguard, the nature of the restrictions in that case was potentially so extraordinary that the case is distinguishable from the restrictions contained in the scheme under consideration in this appeal. The restriction on the use of parking of commercial vehicles in a semirural zone which is designed to preserve the amenity of the locality is not, in my view, an extraordinary intrusion into the freedom or fundamental rights of quiet enjoyment. It is the type of restriction that is consistent with town planning schemes which provide restrictions on the use of land in order to preserve the amenities of the locality (for example, restricting commercial activities within a purely residential zone). It is clear from the Policy Statement on 'Parking of Commercial Vehicles on Private Land' that the restrictions on commercial vehicle parking are designed to address land use and planning issues and not simply to regulate parking on the basis of unsightliness. It is the potential impact on land use and planning which is being targeted. Otherwise the prohibition would be absolute.

37 Although the appellant does not contend the scheme is inconsistent with provisions of the Act, the appellant submits that the regulation of parking conflicts with the provisions of s 3.25 of the Local Government Act 1995 (WA). Section 3.25 relates to a power for local authorities to issue notices to an owner or occupier of land to require the owner or occupier to do certain things to keep the land in a proper state of repair or appearance. This includes a power to issue a notice to require the land to be enclosed if it is unsightly. It is contended by the appellant that the scheme conflicts with s 3.25. The appellant relies upon s 132 of the Act which relates to situations where the carrying out of any provision of a scheme conflicts with other legislation. Section 132 provides:

1. Governor may suspend operation of certain written laws

(1) If the carrying out of any provision of a planning scheme would conflict with any provisions, limitations, or conditions of or prescribed by any Act, the responsible authority may apply to the Governor for an order modifying or suspending the provisions of that Act, so far as may be necessary to enable effect to be given to the planning scheme.

(2) Upon application under subsection (1) the Governor may, in respect of that planning scheme but not otherwise, make an order accordingly for the suspension or modification of the provisions or any of them, subject to such conditions and limitations as the Governor thinks fit.

(3) An order under subsection (2) does not take effect unless and until it has been approved by a resolution of both Houses of Parliament.

38 It is contended by the appellant that it should be inferred from the terms of s 132, that should a provision of a scheme conflict with another Act, the provision becomes invalid or inoperative unless or until the procedure set out in s 132 has been complied with. I reserve my decision as to whether that is the effect of s 132. One observation I make is that it may depend upon the nature of the conflict between the provision of the scheme and the legislation.

39 However, in my view, the appellant need not rely on s 132 but can rely upon s 43(1) of the Interpretation Act 1984 (WA). Section 43(1) of the Interpretation Act provides as follows:

Subsidiary legislation shall not be inconsistent with the provisions of the written law under which it is made, or of any Act, and subsidiary legislation shall be void to the extent of any such inconsistency.

40 Section 5 of the Interpretation Act specifically includes local or region planning schemes within the definition of subsidiary legislation: State Planning Commission v Wallasley Pty Ltd (Unreported, WASC, Library No 950254, 26 May 1995), 3 (Murray J).

41 The basis of ground 2 of the appeal is a contention that the commercial vehicle parking provisions relating to special rural zoned land conflict with s 3.25 of the Local Government Act. It is contended that the commercial vehicle parking provisions of the scheme are directed as to the unsightliness of parked commercial vehicles, an issue covered by s 3.25. I reject this submission. Firstly, as I have indicated earlier, I reject this narrow interpretation of the commercial vehicle parking provisions of the scheme. The provisions go wider than dealing simply with the issue of unsightliness and go to land use and planning issues. Secondly, even if the provisions of the scheme concerning commercial vehicle parking were directed as to unsightliness, that does not place the provisions in conflict with s 3.25. It is argued by the appellant that the provisions of s 3.25 are to be interpreted as covering the field of all ways of dealing with unsightliness, such as the parking of commercial vehicles on subdivisional land so that there is no room for other provisions. There is simply no basis upon which such a conclusion can be reached. There is nothing contained in the section or other provisions of the Local Government Act which indicates that s 3.25 is meant to be an exclusive code covering issues of unsightliness on land.

42 I refuse leave to appeal on ground 2 and, in any event, would dismiss ground 2.

43 The magistrate, after hearing the material facts from the prosecutor (quoted earlier in this decision) and submissions on penalty, made the following sentencing remarks:

HIS HONOUR: It is noted that this matter has been ongoing since - well, the accused was charged on a charge period between August and January 2010. The matter, as these matters tend to, dates back quite some time before then commencing in April 2008 when, in response to complaints, the accused was notified of those complaints. There was some correspondence from the council in May 2008.

Matters then seemed to simply fall into abeyance for some time until there was further complaints received and direction was then given to the accused to cease his activities and he refused or failed to do so. This matter has come to court; it is the subject of a number of appearances. It has gone through to a callover date, with disclosure being provided.

The accused has not appeared on the last two occasions. A lawyer appeared last time to simply advise that he was no longer acting and today there has been no appearance by the accused himself. Hence the matter proceeded in his absence. So it must be said that having regard to the facts as indicate, it is difficult to envisage what defence might have been raised to the prosecution. Now, I am inclined to agree that this is a matter which should be regarded towards the upper end of the scale. There is no record for this accused, is that right?

PROSECUTOR: That's right, your Honour.

HIS HONOUR: Okay. It extended over a substantial period of time. He continued in spite of formal directives to cease. It was an activity which was not only conducted without approval but it was one which affected the amenity of the area; one which affected other residents' enjoyment of their property. It caused damage to council property. It represented a potential hazard in the sense of fuel and items of that nature being stored on the property and also represented a commercial decision on the part of the accused, in the sense that he was prepared to risk prosecution in order to save the trouble and expense of arranging appropriate facilities for the running of a business. of this nature. Having regard to the photographs it does appear to be a large scale operation.

I take into account the comments made in the case of Swan Bay Holdings, particularly the need to ensure there is a culture of reservance and a respect for the purpose underlying planning approvals. There is also a need to impose deterrent sentences so that monetary penalties are sufficiently severe as to ensure that people running businesses are not simply tempted to count prosecution as a cost of doing business.

In this case there has been no plea of guilty. The accused is not, of course, to be penalised for not pleading guilty, but there has been no demonstration of remorse through that means. Indeed, (indistinct) given as to the accused's conduct when spoken to by council officers would be suggestive of a lack of remorse and that in turn would appear to be consistent with his attitude that, in effect, this has been worth the risk.

The maximum penalty having regard to the fact that the accused is a corporation is one of $250,000. It is always somewhat difficult and obviously a matter of degree in every case as to the fixing of an appropriate range of penalty. In this case having regard to the large scale nature of the operation, the flagrant disregard, the commercial aspect through that disregard and the lack of any remorse by the accused - and also I note there has been no application for approval received at any time. That is a distinction to other cases where there has been approval applied for and granted retrospectively.

It is a matter where I, having regard to the - giving appropriate weight to the accused's lack of any kind (indistinct), it is my view that a penalty of 40 per cent of the maximum is appropriate. That's a penalty of $100,000, court costs, $3594.70. In relation to a daily penalty, I think that's appropriate having regard to the flagrant nature of the breach, and that penalty will be fixed at $100 per day for 169 days. So an additional amount of $16,900. That covers all this?

PROSECUTOR: Yes it does, your Honour. Thank you.

44 Although both the magistrate and the prosecutor at times referred to Mr Pavlinovich as the accused, this was understandable given that he was described as the sole director of the company and the appellant company was owned by him.

45 However, notwithstanding these errors, it is clear that the magistrate understood that the charge was against the appellant and not against Mr Pavlinovich. The material facts by the prosecutor highlighted that the commercial transport business was conducted by the company on the land owned by Mr Pavlinovich. The prosecutor described the commercial activities of the company. Also, in submissions on penalty, the prosecutor informed the magistrate that because the accused was a corporation, the maximum penalty increased from $50,000 to $250,000 (ts 5). The magistrate clearly stated in his sentencing reasons that the accused was a corporation and liable to this maximum penalty.

46 In any event, the comments made by the prosecutor and the magistrate where Mr Pavlinovich was described as the accused were made in the context of sentencing. They do not affect the question of the soundness of the conviction.

47 In all the circumstances, I am satisfied that no miscarriage of justice has occurred by the magistrate and the prosecutor referring at times to Mr Pavlinovich as the accused.

48 The appellant contends that the errors made by the prosecutor in the material facts whereby he described the accused as being Mr Pavlinovich demonstrates that the conviction entered by the Magistrates Court is unreasonable, cannot be supported and therefore a miscarriage of justice has occurred. However, this contention contains a misconception as to the purpose of the material facts being stated to the court. The material facts stated to the court by the prosecutor do not constitute evidence going to the conviction of the appellant. Under s 55(5) of the Criminal Procedure Act, the statement of the material facts occurs after conviction has occurred and is for the purpose of sentencing.

49 Under s 55(4) of the Criminal Procedure Act, the magistrate may rely upon the allegations contained in the prosecution notice. The prosecution notice clearly states that the accused is the appellant and not Mr Pavlinovich. In any event, as I have concluded in relation to ground 2A of the grounds of appeal, the errors made by the prosecutor were understandable and incidental, given the other clear indicators that both the prosecutor and the magistrate understood that the accused was the appellant and not the individual.

51 The general principles when dealing with an appeal against sentence were set out in the decision of Mazza J in Wilson v The State of Western Australia [2010] WASCA 82 [2]. The principles were listed as follows:

1. The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2. It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3. Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).

52 In determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place the criminal conduct occupies on a scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342; Lam v The State of Western Australia [2010] WASCA 61 [9] (McLure P, with whom Owen JA & Jenkins J agreed).

53 The maximum penalty in this case is a penalty of $50,000, plus a daily penalty of $5,000 during the period during which the offence continued. It is not disputed that the offence continued on the allegation contained in the charge for 169 days. Pursuant to s 40(5) of the Sentencing Act 1995 (WA), as the appellant was a body corporate, it was liable to a fine of five times the maximum fine that could be imposed on a natural person convicted of the same offence. This increased the maximum penalty to a fine of $250,000, with a daily penalty of $25,000 per day.

54 The prosecutor, in his submission to the magistrate, referred the magistrate to the case of Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 in which a fine of $150,000 was upheld against a corporate offender. In that case, the appellant was an owner of land and had proceeded to develop the land despite formal directions from the council to cease the development until approvals were obtained. The case contained a review of decisions of fines imposed against natural person offenders and corporate body offenders. The cases reviewed involving corporate body offenders were as follows. In Peat Resources of Australia Pty Ltd v Rodney William Brown Chief Executive Officer City of Cockburn [2002] WASCA 342, the appellant appealed against a penalty of $122,400 ($50,000 fine and a daily penalty of $200 for 362 days) for a breach of s 10(4)(a)(i) of the Town Planning and Development Act 1928 (WA), a provision similar to s 218(a) of the Act. The penalty appealed against was 20% of the maximum for a corporate offender. In that case, the appellant operated a large commercial soil operation involving the screening, mixing, stock piling and storage of 30,000 to 400,000 tonnes of manure, soil and organic material on a 40hectre site. These activities involved the substantial movement of trucks to and from the site. In dismissing Peat Resources' appeal and holding the penalty was not excessive, the court noted that there had been six previous convictions of unlawful land use of the same site over a fiveyear period.

55 In Dodd & Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37, the corporate appellant was convicted after trial of an offence under s 218(a) of the Act by using land to operate a salvage/wrecker's yard which was not permitted use under the relevant town planning scheme. The offence was alleged to have continued over a 288day period and a total fine was imposed of $148,800, comprising of a fine of $120,000 and an additional penalty of $100 per day. Hall J, in dismissing the appeal, took into account various matters, including that the appellant was conducting a substantial commercial business; the appellant had advanced an untenable defence at trial and had done so to delay the inevitable; the appellant had been twice prosecuted and convicted before with fines of $5,000 and $10,000 imposed on each of those occasions; previous prosecutions and fines had not served to deter the prohibited conduct; and, as such, the fine of $148,800 was within the appropriate range and could not be described as manifestly excessive.

56 In Swan Bay Holdings' case, Hasluck J stated as follows:

Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose. This requires that breaches of the law be underpinned by significant penalties in order to deter infringements [74].

57 The other cases referred to in Swan Bay Holdings indicated penalties against natural persons ranging from $10,000 to $30,000.

58 The rationale of s 45(5) of the Sentencing Act whereby a corporate body is liable to a fine five times the maximum penalty of a natural person, appears to be based upon the notion that a corporate body is more likely to be involved in a commercial activity and/or is likely to have a greater capacity to pay a fine. Of course, the magistrate had no material before him as to the capacity of the appellant to pay a fine, as the appellant did not attend the hearing. This did not prevent the magistrate from imposing a substantial fine. Pursuant to s 53 of the Sentencing Act, a court in deciding the amount of a fine to be imposed must, as far as practicable, take into account the means of the offender and the extent to which the payment of the fine will burden the offender. However, a court may impose a fine even though it has been unable to find out the means and the extent to which the fine will burden the offender (s 53(1) and (2)). In written submissions filed, it was stated that the extent of the fine imposed by the magistrate will bankrupt the appellant and end his longstanding business. However, no material was presented on the appeal as to the financial capacity of the appellant which would indicate the means of the appellant to pay the fine and the extent to which the payment of the fine will burden the appellant.

59 The appellant, in its submissions, contended that the nature of the offence in this case was distinguishable from authorities considered in Swan Bay Holdings' case, as there was no commercial activity involved in the appellant's parking of trucks. It was contended that the mere parking of trucks was not a commercial activity. However, the parking of the vehicles was clearly a part of a commercial activity based on the property. In my view, the magistrate was entitled to view that it was a largescale operation being conducted from the property. The photographs tendered by the prosecution showed at least five large semitrailer trucks, a shed containing stockpiles of fuels, and a storage shed being used in conjunction with the business.

60 It was contended by the appellant that the activities conducted by the appellant on the land were consistent with the normal type of machinery operations of a rural property. It is contended that the restrictions contained in the scheme had no rational explanation and this meant the breach should not be viewed as serious. This submission fails to take into account the nature of the special rural zone, as outlined earlier in this decision. It is not equivalent to creating a zone which might be comparable with large agriculture holdings that exist in country shires. The zoning relates to small lots for residential living in rural surrounds. In any event, it is not contended that the appellant was simply parking trucks as a part of an agricultural activity. It is clear the trucks were being parked using the land as a base for a transport business. From the photographs, they are large trucks that are likely to cause considerable noise.

61 In my view, the magistrate was entitled to view the appellant's business as a largescale operation which was conducted on the land with a flagrant disregard for the need to seek approval. No remorse has been shown. In fact, the submissions presented on behalf of the appellant have sought to trivialise the nature of the offence. In my view, even though this was a first offence, in view of the flagrant nature of the offending behaviour, I am not satisfied that the penalties imposed were manifestly excessive. I will grant leave for the appeal, but dismiss the appeal in relation to ground 3.

62 For completeness' sake, I will deal with the two questions upon which I invited supplementary submissions. As to the first question, both parties agreed that the validity of the charge is not affected by the owner of the land being Mr Pavlinovich (although the question has given rise to the related new grounds of appeal 2A and 2B raised by the appellant). The offence relates to the use of the land and not to a use of the land by the owner of the land. As to the second question, both parties agreed that the prosecution notice does disclose an offence at law. The prosecution notice states that the appellant 'used land within the said scheme area ... without all approvals required by the scheme having been granted and issued by the Shire of Kalamunda'. Such wording is sufficient to disclose an offence under s 218(a) of the Act. Although the particulars contained in the wording of the prosecution notice do not refer expressly to a parking of a commercial vehicle 'for more than two consecutive hours or for a longer period than is necessary to load and unload, or for a longer period than is necessary to complete a service being rendered to the property' (as per the definition of 'commercial vehicle parking' contained in cl 2 of sch 1 of the scheme), these particulars are, in my view, implied by the words contained in the prosecution notice 'parking of commercial vehicles without all approvals required'. If the parking did not fall within the definition of commercial vehicle parking, then no approvals would be required. In any event, under s 178(2) of the Criminal Procedure Act, any objection by an accused to a prosecution notice on the ground that it is defective must be made before the prosecutor's opening address. The appellant concedes that no such objection was made in this case before the prosecutor made his or her opening address, and that it follows that no such objection can now be made.

63 I reserve the question of whether such an objection can be made on appeal, even though the objection was not raised at the time prescribed by s 178 of the Criminal Procedure Act, but, in any event, for the above reasons, I conclude that the prosecution notice did disclose an offence at law and therefore was valid.

Ground 1: Leave to appeal is granted, but the ground of appeal is dismissed.

Grounds 2A and 2B: Leave to appeal is granted, but the grounds of appeal are dismissed.

Ground 3: Leave to appeal is granted, but the ground of appeal is dismissed.