Daniele v Shire of Swan (1998) 20 WAR 164

1 WHEELER J: On 18 August the appellant was tried and convicted in respect of a charge pursuant to s 10(4) of the Town Planning and Development Act 1928 ("the Act"). The complaint was in the following terms. It alleged that he at 35 Pitchford Avenue, such premises being within the City of Gosnells -

"did carry on or commence development of the said land, namely "industry-general" as defined in the Town Planning Scheme including motor vehicle dismantling, assembly, reassembly, servicing, maintenance or repairs and motor vehicle parts dismantling, assembly, reassembly, servicing, maintenance or repairs, which use is prohibited within a residential zone."

2 It is not in dispute that at all material times the appellant was a co-owner and an occupier of 35 Pitchford Avenue, Maddington and that that land was within the boundaries of the City of Gosnells. The premises are zoned residential and it was not in dispute that the appellant and his wife and two children resided on that land.

3 The learned Magistrate found the case against the appellant proved, fined him $5000 and ordered the payment of costs in the sum of $2750. This is an appeal against both conviction and sentence.

4 Turning to the appeal against conviction first, there are, it seems to me, essentially two limbs of the appellant's argument. The first revolves around the question of whether the use alleged necessarily has inherent within it a concept of a commercial use or a use for profit or by way of business.

5 To understand that submission it is necessary to look in a little more detail at the provisions of the City of Gosnells Town Planning Scheme No 6 Scheme Text ("the Scheme") which is the Scheme in issue here. Clause 12.4 of the Scheme provides that, as one would expect, a person must not use any land or commence or continue to carry out any development within the Scheme area otherwise than in accordance with the Scheme.

6 There is in the Scheme a schedule headed "Dictionary of Defined Words and Expressions" which continues for a number of pages. The definition of "industry" is both a "means" definition and an "includes" definition. It reads relevantly as follows:

"Industry means premises used for the manufacture, dismantling, processing, assembly, ... maintenance or repairing of goods, products, articles, materials or substances."

7 The definition goes on to say that "industry" includes premises used for the storage of goods, the work of administration or accounting, the selling of goods by wholesale or retail or the provision of amenities for employees incidental to any of those industrial operations; those industrial operations obviously being those already referred to. The particular use alleged here, "industry-general," is defined to mean an "industry other than a cottage, extractive, light, mining, noxious, rural or service industry".

8 It can immediately be seen that there is not within the definition itself any reference to business or commercial use, and that definition of "industry" is in contrast, for example, with other definitions, such as "agriculture intensive," which means premises used for trade or commercial purposes; "convenience store," which means premises used for the retail sale of convenience goods; and a number of other definitions which contain a reference to either sale or to commercial usage.

9 Despite the absence of any express reference to commercial or business purposes in that definition, it is nevertheless submitted that I should understand the definition to be referring only to commercial or business type uses essentially for two reasons. One reason is that, it is submitted, as a matter of ordinary usage, the word "industry" is synonymous with the operation of a business. I was referred to a dictionary definition and it seems to me that that submission is not persuasive. There are commonly a number of usages of the word. Some plainly relate only to a business type of enterprise; for example, the Macquarie's second usage is "any large-scale business activity." However, others refer to manufacture in the context of the expression "a branch of trade or manufacture", or "manufacture or trade as a whole", which, while the expressions would ordinarily frequently encompass a business or commercial usage, do not necessarily do so. There are also further common usages such as "systematic work or labour" which do not contain any necessary element of business or commercial enterprise.

10 It was also submitted to me that when one looks at the list of land use definitions in the Scheme so as to understand the definition of "industry" in its context, they were the types of uses which one would associate either normally or invariably with commercial or business enterprises. That is, no doubt, so for a considerable number of them. Indeed, as I have observed, some of them are defined in a way which limits the usage to a commercial usage. There are others however which are of a different nature, and I refer, for example, to the definition of "club premises," and to the definition of "rural pursuit" as being uses which do not carry with them any necessary implication of commercial or business enterprise.

11 It seems to me that neither the use of the word "industry" itself nor the context suggests that there has to be a commercial or business element to the use before an enterprise can fall within the definition of "industry" for the purpose of the Scheme. Indeed, it seems to me that, given that some of the definitions refer expressly to trade or commercial purposes, one would be inclined from the context to draw the opposite conclusion. That limb of the grounds of appeal therefore cannot be sustained.

12 The second limb of the argument is to be found summarised in the appellant's paragraphs 10 and 11 of the written submissions, and I quote from those directly.

"10. It was established by the evidence that minor and major repairs to motor vehicles are allowable in residential premises. The degree to which the premises were used by the applicant for his hobby of repairing motor vehicles was never established by the evidence.

11. As there was no direct evidence of the applicant using the premises for the purposes of "industrial-general," the case was circumstantial. The learned Magistrate failed to direct himself that the prosecution had to exclude all other conclusions consistent with innocence - "

It is then submitted it was not a necessary inference for his Worship to draw that the use was as described in the complaint.

13 In order to understand those matters, I go briefly to the evidence. The evidence which was called consisted on the one hand of the evidence for the respondent, of Mr Hutchison, a planning compliance officer with the City of Gosnells, and on the other the appellant himself.

14 The evidence of Mr Hutchinson was broadly as follows. From 1999 or 2000 through to 2003 he had always observed a considerable number of vehicles in various states of repair and parts of vehicles on the premises. Although there was not a rapid turnover, it seemed to him when he observed the premises that the vehicles and parts thereof regularly changed with some vehicles being replaced by others. He had on some occasions, although not between the times alleged in the complaint, it seems, seen on the property equipment which appeared to be an electric welder and what he described as a "service station sized" car jack. Between the dates in question he observed on the premises a mechanical workshop fitted with a compressed air reel, welders, and a significant quantity of tools capable of being used for the purposes of working on vehicles.

15 Importantly, there were tendered three sets of photographs of the premises taken on 22 October 2002, 12 December 2002 and 14 February 2003. There were a considerable number of photographs. It seems to me it is not necessary to describe them all in detail. The photographs of the shed and of a carport or lean-to type of structure do display a very considerable number of tools. Some of the views of the yard I might describe in a very broad way as resembling, one would have thought, portions of a vehicle wrecker's yard, so numerous are the vehicles and vehicle components to be seen on the premises. There were also on the premises, it seems, quantities of other goods unrelated to vehicles. One can see in one of the photographs a washing machine, for example. There seem to have been bits of carpet and other materials. Nevertheless, vehicles and vehicle parts can be observed throughout the photographs, and appear to predominate.

16 The appellant's evidence in chief was extremely brief. He said that he had lived in the premises for approximately 15 years, that he lived there with his family and that the photographs did reflect the general state of the premises. I quote in full what seems to have been the significant portion of the examination in chief, the questions and answers:

"What do you say that you use the premises in the way the Council states? That is, for repairing cars, etcetera?---Incorrect. It's incorrect.

Why do you say it's incorrect?---Because it's not what - I'm not doing that at the premises. It's just -- I live there. That's it.

How would you describe what you did with motor vehicles on the premises?---It's a hobby. Vehicle parts hobby, yeah. It's my own family, my personal use.

What do you mean for your own family?---My own family; myself, my wife, my two kids. I do the cars, repair the cars for my own family.

You're building cars for your own family?---Yes."

17 I note that there was no suggestion in the evidence in chief of the appellant that that was an activity from which he had desisted for any particular period of time. It appears to me to be significant that understanding that the complaint related to a particular period of time, he nevertheless, when asked what he was doing at the premises with the vehicles, spoke of a hobby of repairing the cars and building them for his family. There were other references to "repair" during the course of cross examination.

18 It is also convenient to note at this stage that so far as one can tell from the transcript - and of course his Worship had, as I do not, the advantage of seeing the appellant give evidence - there is a flavour of evasiveness and an apparent lack of credibility in some of the answers given by the appellant during the course of cross examination. For example, when asked, at page 65 of the appeal book, in relation to one vehicle which was the subject of some considerable discussion, whether he had the intent between October 2002 and February 2003 of holding that vehicle for the purpose of in due course turning it into another vehicle, something useable and registrable, (it being common ground that the vehicle was not in a useable condition at the time) his answer was, "Possibly." The word "possibly" was repeated back to him as a question and his only answer was then, "Well, I don't know the future." Asked about the time at which he had purchased it, and what intent he had at that time, he said that he was "thinking about rebuilding". Asked whether he had changed his mind, he again reiterated that he did not know the future and observed that he could not afford to finish it at the moment. Then, asked again about the period of October 2002 and whether he at that stage intended to turn that vehicle into a registrable, driveable motor vehicle, his only answer was, "It was a dream once, yeah," which counsel took, as I do, to be a reluctant yes.

19 There are, it seems to me, quite a number of passages of that kind. I do not pause to read them all. Another appears at page 73 in relation to the use of an engine for rebuilding; when pressed it seemed to me that the appellant was in the end forced to concede that there was no other use that he could make of that engine.

20 There was also some evidence relating to a pneumatic assembly. This was something which appeared to be of some significance to his Worship. The relevant passage of cross examination appears at page 74. It appears from the preceding page that the appellant had been shown a photograph 19 which clearly shows something which looks precisely like a pneumatic assembly - it is a bit hard to see what else it could possibly be - and that it was in that context he was asked the question:

"And the pneumatic assembly on the drum inside the shed, what's that used for?---It's a garden hose."

21 There was some further discussion of that "garden hose" and what it was used for and his answer, not surprisingly, was that it was used for watering his garden. The possibility of mistake or confusion was canvassed before me during the course of oral argument on the appeal but the observation which I would make is that the photographs clearly show a pneumatic assembly, not a garden hose; that the item was described in those terms to the appellant at a time in which he had a relevant photograph apparently in front of him, or had recently had it in front of him, and it was in that context that he in effect denied that the item was what it appeared to be and maintained that it was a garden hose. It was that answer to which his Worship referred in the reasons to which I will come in a moment.

22 Against that background then I return to the submissions of the appellant in relation to this issue. They have two limbs. The first limb is broadly to the effect that minor repairs to motor vehicles are allowable in residential premises; that this was said by the appellant to be a hobby of his; and that the degree to which he used the premises for that purpose was not established by the evidence.

23 Of course, it was not established "by the evidence" that minor repairs to motor vehicles are allowable in residential premises. The question of whether that is so is a question of law and of the proper construction of the Scheme, to which I now come. Looking at that issue, the law seems to me to be reflected in the following two passages which I cite from relevant authority. The first is an extract from the reasons of Gibbs CJ in Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211 at 216 to 217. It is a passage quoted in a decision of Parker J of this court, that decision being Joint Property Ownership Pty Ltd & Ors v The City of Subiaco & Anor [1998] WASCA 21. It is a lengthy quote. I set it out in full (omitting citations):

"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 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 purposes 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 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.' ..."

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

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

25 It is common ground that that is the test to be applied; that is, it is a question of fact and degree. Given my earlier finding in relation to the definition of "industry-general", the mere fact that something is a hobby rather than a commercial enterprise does not mean that it is for that reason incapable of falling within the definition of "industry-general". It is a question of fact and degree.

26 Turning to the question of what evidence there was of the appellant using the premises for the purposes of "industry-general" during the period in question, the case was indeed, as the appellant's counsel points out, circumstantial. However, his Worship appears to have had regard to three issues in arriving at his decision. It is perhaps convenient to quote again in full what seems to me to be the relevant portion of his Worship's reasons. It commences on page 90 of the appeal book:

"The premises - I accept that there is a considerable amount of materials, some of which are not involved in what one might call related matters - air conditioners and things of the like which are simply, shall we say - may appear to be unsightly but when one looks at the photographs, and I think the photographs tell the tale, this is - this is essentially a wrecking yard in general terms. There are car bodies, axles, tyres, car rims, disassembled vehicles, hoists, acetylene bottles, air hoses and the like throughout the yard, and frankly, the shifting of items, the removal of cars to the front, in my view only has limited impact on the entire matter. The reality is that may well have been the outside vista but the reality is that the kernel of the matter is that the activities were in the backyard, and that's reflected in the photographs and reflected in the state of the yard, and that between 22nd of October and the 14th of February in that regard, in my view, nothing changed.

The behaviour was clearly consistent over that time and I am satisfied, well and truly satisfied, that the prosecution have proven its case and the definition of industry, dismantling and processing assembly, servicing, maintenance, repair of goods, that behaviour is clear and apparent from the photographs. Frankly, the evidence of Mr Popelier does him no credit in all this matter and, as I say, I take particular umbrage with Mr Popelier's suggestion in trying to mislead the court and I have no doubt he tried to mislead the court in relation to the air hose. One only needs to look at the photograph and it is blatantly clear, I don't think I have to - one can take certain judicial notice of certain things and that is an air hose if I have ever seen one. It's not a water hose. It's about as close to perjury as one would ever get, frankly. At the end of the day I am satisfied the prosecution has proven it's case beyond reasonable doubt in each case."

27 Clearly his Worship was particularly impressed by the photographs and it seems to me that he was entitled to place considerable weight on them. As I put to the appellant's counsel during the course of argument, aside from dealing in car parts (which was not the suggestion here) it is difficult to imagine what else so many vehicles and parked vehicles could have been doing on premises were they not there for the purpose of assembly, disassembly, repair and the like.

28 The second strain of his Worship's reasoning is of consistency over time. In that regard, although he did not refer expressly to it, it seems to me that he was looking to the evidence of Mr Hutchinson as to what had occurred on occasions prior to the dates alleged in the complaint when he had visited the premises and was having regard also to the appellant's evidence as to his longstanding interest in the practice of repairing and rebuilding cars. That was relevant to assist his Worship to draw an inference that that was an activity which the appellant had been conducting over a very considerable period of time. It was his own evidence that that was his activity albeit, he said, as a hobby. There being nothing either in chief or cross-examination to suggest that the appellant had desisted from that conduct for the particular period set out in the complaint, and the means of engaging in that conduct plainly being present on the premises, it seems to me his Worship was entitled to draw the inference that that conduct was taking place over that period of time.

29 Finally, any suggestion to the contrary from the appellant and any suggestion from the appellant minimising the scale of the enterprise in which one would otherwise from the photographs have thought that he was engaging, seems to have been rejected by his Worship on the basis that the appellant was not a credible witness. It is not only the matter of the air hose that his Worship refers to but he refers, it seems to me, to the evidence of the appellant overall. His Worship having had the advantage of hearing the witness he was entitled, it seems to me, to draw that conclusion; indeed, to the extent that one could attempt to second-guess his Worship's judgment from a reading of the transcript, it does appear to me that there is an evasiveness which would justify that conclusion.

30 For all those reasons it seems to me that the reasons briefly expressly by his Worship are persuasive, that it was open to him to reach a view that the only reasonable inference from all of that evidence was that the conduct alleged in the complaint was taking place during the period alleged. For that reason I would dismiss the appeal so far as it relates to conviction. I turn now to the question of the appropriate sentence and the grounds in relation to that matter.

31 There seem to be three. The first is that it is submitted that his Worship erred in taking into account as an aggravating circumstance the fact that the appellant had employed a solicitor to defend the charge and brought the matter to trial. Had he done so, that would certainly have been an error. It seems to me that that was not what his Worship was doing if one reads his reasons as a whole.

32 I preface my observations in relation to this and the next ground to which I refer by noting that his Worship has clearly taken the view that the appellant in his evidence had been untruthful and evasive.

33 What his Worship actually said was that, the appellant having had a complaint made about the state of his premises in October, he should have acted at that stage. His Worship then went on to observe that what the appellant was doing was employing a solicitor to defend the indefensible, that that was the appellant's choice and that his Worship in those circumstances could - and I quote, "really have little mercy." His Worship went on to say that the appellant had ample opportunity over 4 to 6 months to do something about the state of the premises and had procrastinated.

34 As a matter of sentencing principle there are two issues, I think, arising there. The first is that his Worship's observation, "I can really have little mercy", seems to me to be relating simply to the well-known sentencing principle that an early admission of guilt, expression of remorse and plea of guilty will be given an appropriate sentencing discount. That is, it is a mitigating circumstance if one acts promptly to admit and to remedy a fault. His Worship took the view that that action could and should have been taken, but had not been, and the discount, the mitigating circumstance, therefore was not present. There was a degree of aggravation in his Worship's view, in the fact that the conduct had persisted over a period of time. Again there is nothing in error in that, so far as sentencing principle is concerned. If wrongful conduct is persisted in for a period of time, particularly after a person has received notice of the error, then that may in appropriate circumstances, be aggravating.

35 It is then submitted that his Worship erred in considering irrelevant matters when sentencing the appellant because he took into consideration the effect of the appellant's conduct on the value of surrounding properties without any apparent basis for doing so. I think it is appropriate to quote the relevant passage here in full again. His Worship said:

"I mean it's an absolute disgrace that somebody could put their property in that state -"

I interpose that is referring to the appellant's property -

"but I don't even sentence you on that, but just looking at these photographs one could understand why there would be complaints."

36 I interpose again, that seems to be a reference to the fact that some neighbours or a neighbour had complained:

"I mean, if you were a neighbour, you would reduce the value of the property in the vicinity I would have thought probably by 25 per cent. If you came along and saw that as a neighbour you would say, 'There's no way I'm going to move in there,' but, as I say, I can ignore that. That's a separate matter."

37 Two things, it seems to me, are evident from that passage. The first is that his Worship did wish to bring home to the appellant the social consequences, if I can put them that way, of his conduct. That is, that what he was engaged in was not a mere abstract breach of planning regulations but could have real consequences for real people, those people being his neighbours. It is not unusual and, in my view, not inappropriate for sentencing remarks on occasion to attempt to bring home to a person convicted of an offence what the consequences may actually be in practical terms. However, his Worship clearly understood - he said so twice - that that was not a relevant sentencing consideration; that is, the question of diminution in value of surrounding properties. It seems to me therefore that whether there was or could have been as a matter of fact any diminution in the value of surrounding properties is irrelevant, his Worship having expressly disregarded it.

38 Finally, it is submitted that his Worship erred in that when he sentenced the appellant he did not have regard to the totality of the crushing financial burden suffered by the appellant. That refers to the fine of $5000 which is one-tenth of the maximum (the maximum penalty being $50,000) and it refers in particular to that fine when his Worship was aware that there were costs of $2750, which costs he ordered the appellant to pay.

39 It is true that there was before his Worship material to suggest that the appellant was a person of limited means. During a plea in mitigation his Worship was advised that the appellant was 47 years of age, was purchasing the premises, had mortgage repayments of $400 a month and two children. The appellant was a full-time carer, his wife working and obtaining $300 a week - it is not clear whether that is gross or net - and the appellant obtaining $100 a week, and again it is not clear whether that is gross or net but in any event it is plainly a relatively modest amount.

40 His Worship had that material before him and said that he was conscious in relation to what he described as the "issue of expenses". It appeared however that the appellant was not a person of no means, he being able to engage a solicitor to act for him in the matter and there was correspondence of his directed to the Council, which was in evidence in this case, which suggested that in his view the vehicles, or parts of them or some of them, were of value, albeit to a limited number of collectors. His Worship would have understood, it being I think a matter sufficiently notorious for notice to be taken of it, that the vehicles and parts thereof, even in extremely poor condition, have some value either as parts or as scrap, so that the appellant was a person of modest means, modest assets, but not entirely without either means or assets. His Worship of course also would have understood that suitable arrangements could be made to pay the fine.

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

42 For those reasons it seems to me that the appeal against sentence also should be dismissed. I would dismiss the appeal.