Appeal - Development and Planning Act 2005 (WA) s 218(a) - Grounds of appeal have no reasonable prospect of success

Criminal Appeals Act 2004 (WA), s 8(1), s 9(2)

Environmental Protection Act 1986 (WA)

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

1 LE MIERE J: The appellant has various landholdings, including Lot 806 Mundijong Road, within the City of Rockingham on which he operates a sheep holding facility. This facility has operated for the last 25 years. The livestock holding facility includes an outdoor livestock facility. The area is prone to flooding. The appellant has used land management practices which involve putting sand on the property to create what he describes as a sheeting or bedding.

2 Lot 806 Mundijong Road is a lot without improvements. It is zoned rural under the City's Town Planning Scheme. It is approximately 2.1 ha in area. Between November and April 2011 the appellant caused soil and sand to be delivered to the property. The appellant admitted the fill involved about 250 truckloads of soil and sand or about 5,000 cubic metres of fill. The fill was spread and the land was covered with soil and sand approximately 1 m above natural ground level. The appellant said that once the sand is graded it goes down to a level of about 25 cm above natural ground level and its 'just like a sheet of sand'.

3 The appellant was charged with the following offence:

Carried out development, namely depositing sand and soil on the land, without first having applied for and obtained the planning approval of the Council of the City of Rockingham thereby contravening Clause 6.1.1 of the City of Rockingham Town Planning Scheme No 2, contrary to [s]ection 218(a) of the Planning and Development Act 2005.

4 The appellant pleaded not guilty. The matter was tried in the Magistrates Court. The City called three witnesses in support of its case. The appellant gave evidence in his defence. The magistrate reserved her decision and subsequently delivered her reasons for decision orally.

5 In her reasons for decision the magistrate said that the issue was whether the addition of the fill to Lot 806 Mundijong Road was development for the purposes of the City of Rockingham's Town Planning Scheme No 2 and, if so, whether this development required planning approval. Her Honour found the charge proved for the following reasons. The land is zoned rural under the City's Town Planning Scheme No 2. The only permitted uses for property zoned rural are a single house and a domestic communication antennae. Accordingly, any other uses required planning approval. Lot 806 Mundijong Road was not the subject of any planning approvals granted by the City and was not the subject of any approved use. The deposit of about 5,000 cubic metres of fill on Lot 806, Mundijong Road was a development. The reason for the appellant depositing the fill on the property was to develop the quality and standard of his livestock holding facility. The appellant's predominant reason for putting the fill on the property was the development of his livestock holding facility. The appellant deposited a significant amount of soil and sand on his property and that quantity was sufficient to substantially increase the ground level height of his property. That activity was a development within the meaning of the City's Town Planning Scheme No 2, in that it was a use involving activity upon the land and accordingly was a development which required planning approval. The appellant had no planning approval. Accordingly, the appellant carried out a development without the requisite planning approval and thereby breached s 218(a) of the Development and Planning Act.

6 After receiving submissions as to the appropriate sentence the magistrate made sentencing remarks to the following effect. The appellant is a first offender. The appellant was warned on 9 November 2010 that he required planning approval for the placement of the fill on the land. The appellant did not cease work but simply continued with his work and finished the project in about April 2011. The appellant did not apply for retrospective planning approval until June 2012. The appellant has made substantial change to the land without any planning approval. The appellant is an individual and not a corporation and a fine must be imposed on that basis. The work done was to improve the land for the purposes of using the land for livestock holding. The fine should be 30% of the maximum. The court will not impose a daily penalty. The fine will be $15,000 and that will cover any daily aspect of the appellant's behaviour.

7 The appellant applies for leave to appeal against his conviction and against sentence. The appellant sets out four grounds of his appeal against conviction:

1. The existing Livestock Holding Facility can be inferred it had been approved on Lot 806 Mundijong Road (formerly lot 200 Mundijong Road).
2. The approved expansion of the Livestock Holding Facility had been approved on Lot 200 and 733 Mundijong Road and Lot 1099 Wilkinson Road and therefore can be inferred that there was an existing approved Livestock Holding Facility and Lot 806 was part of that facility (formelly [sic] part of Lot 200).
3. The 'bed of sand' of 25cm was an incidental use to the existing farming operations as grazing or holding area for livestock and/or part of the operations of the Livestock Holding Facility. The 'bed of sand' was put for environmental, best farm practice and animal welfare reasons.
4. The 'bed of sand' should not be viewed or described as a development but an incidental use to the sheep holding facility and farming land management practice.

8 The appellant says that he has been running a livestock holding facility and feed lot from his properties on Lot 1099 and Lot 733 and Lot 200 Mundijong Road (now known as Lots 805, 806 and 807) since 1987. In support of that ground the appellant produced a copy of an approval to commence development from the City dated 11 February 1987. The approval was to commence development of sheep holding and shearing sheds on Lot 1099. It was a condition that the approval was valid for 12 months. The approval was not produced at the trial. In any event, it relates to a development on Lot 1099 not Lot 806 and the development was not proceeded with. The approval is not relevant to the charge.

9 In further support of this ground of appeal the appellant produced a licence granted by the Department of Environment and Conservation to Livestock Express Pty Ltd in respect of a livestock sale yard or holding pen on Lots 1099, 805, 806 and 807. The licence was granted under the Environmental Protection Act 1986 (WA). The licence was not produced at the trial. In any event, it is not an approval for the purposes of the Planning and Development Act 2005 (WA).

10 In further support of this ground of appeal the appellant alleged that the magistrate had relied on and been provided with incorrect and false evidence by Mr Waller, a town planner at the City. The appellant's submissions are argumentative and amount to a submission that the magistrate should not have accepted the evidence of Mr Waller because he is wrong. An appeal may be made on the ground that the court of summary jurisdiction made an error of fact: Criminal Appeals Act 2004 (WA) s 8(1). However, it was open to the magistrate to accept the evidence of Mr Waller and the appellant has not advanced any, or any sufficient, reason why the magistrate should not have accepted the evidence of Mr Waller.

11 Ground 1 of the appeal has not been made out. Indeed, it does not have any reasonable prospect of success.

Appeal ground 2 - Approved expansion of the livestock holding facility

12 The appellant says that in 2006 the City approved an expansion of the existing livestock holding facility over Lots 200 and 733 Mundijong Road and Lot 1099, and in 2008 the City renewed the approval for a further two years over Lot 200 and Lot 1099. The appellant says that since an approval was granted for an expansion of the existing livestock holding facility over Lot 200 and Lot 1099, it can be inferred that there was an approval to operate the existing sheep holding facility prior to the approval to expand the sheep holding facility. The appellant further says that the land has been used as a livestock holding facility for approximately 20 years and the existing operation is licensed by the Department of Environment.

13 The only evidence of approvals of a livestock holding facility was given by the appellant. The appellant said that in 2008 he applied for planning approval to use Lot 200 and Lot 1099 as a sheep holding facility and to build 16 sheds as part of that sheep holding facility. The appellant said that he had not proceeded with that approval and did not build the sheds. When it was put to him in crossexamination that he did not have any approval for Lot 200 for a sheep holding facility from the City of Rockingham the appellant agreed that he did not but said that he had approval from the EPA and the EPA licence went to the City. The appellant also said that the Rural Land Strategy identified Lot 200 as livestock holding facility. When the appellant was pressed to produce planning approval to use any part of Lot 806 or Lot 200 as a sheep holding facility the appellant referred to the EPA licence. In further crossexamination the appellant agreed:

[i]t's true, from the council there's no approval, but they are well aware that there was - if you have a look at the planning documentation they have admitted that there is a sheep holding facility being operated.

14 In summary, there is no evidence that the appellant has approval from the City to operate a livestock holding facility on Lot 806. In any event, that is not the issue, the issue is whether he had approval to carry out development by filling the land with the sand and soil that was deposited on it. There is no evidence that he did. This ground of appeal is not made out. It has no reasonable prospect of success.

Appeal grounds 3 and 4 - Incidental use, no development

15 Grounds 3 and 4 may be conveniently dealt with together. In ground 3 the appellant says that the Town Planning Scheme allows for a use which is incidental to the predominant use of the land and the landfill was incidental to the predominant use of the land as a livestock holding facility. In ground 4 the appellant submits that the bed of sand should not be viewed or described as a development but an incidental use to the sheep holding facility and farming land management practice.

16 In effect, the appellant contends that he is permitted to use Lot 806 as a sheep holding facility and the deposit of the landfill onto that lot was incidental to that use and therefore permissible. I do not accept that argument. The determination of whether a particular use of land is incidental to another land use 'requires the identification of a predominant use and a determination of whether the proposed use is consequent on such a use or naturally attaching, appertaining or relating to such a use': City of Swan v Taylor [2005] WASCA 88. The appellant does not contend that his use of Lot 806, after the deposit of the fill, was incidental to his claimed lawful use of the lot as a sheep holding facility, but rather that he is entitled to undertake works on Lot 806 in furtherance of the same claimed lawful use. If the deposit of the fill on Lot 806 is a 'development' then the City's approval under Town Planning Scheme No 2 is required and, whether the purpose for which the fill is deposited is incidental to the claimed lawful use, is irrelevant.

17 The respondent submits that it is a question of degree whether the deposit of fill on Lot 806 constitutes a development. 'Development 'is defined in Town Planning Scheme No 2 sch 1 and s 4 of the Planning and Development Act 2005. 'Development' encompasses activities which result in some physical alteration to the land which has some physical degree of permanency to the land itself: University of Western Australia v City of Subiaco (1980) LGRA 360, 363 364 (Burt CJ).

18 In Parramatta City Council v Shell Co of Australia Ltd (1972) 1 NSWLR 483 Street J held that the depositing of filling on the land in question was a 'work' as that term is used in s 342T of the Local Government Act 1919 (NSW) and was a 'development' which required council consent. His Honour said:

The question I have to determine is whether the depositing on this land of the quantity of filling described earlier is a 'work' within s 342T. I take respectful guidance from the foregoing statements of the meaning of the word in a different, but nevertheless cognate, context.

As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as a 'work', and thus a 'development', within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a 'work'. At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a 'work'. In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1,200 cubic yards of filling or topsoil over a very large area might well not be of such significance as to amount to a 'work'. But the depositing of that quantity in a suburban allotment, having the effect of building up the height of that allotment at one corner to a point eight feet six inches above its natural level, and the creation of a relatively level surface extending over most of a block of land such as this is, in my view, a 'work' within the meaning of the Act. I am accordingly of the view that the depositing of this filling amounted to 'development'. As such, it could only lawfully have been placed there if the defendant had the requisite authority to carry out such development (489).

1. Lot 806 comprises an area of approximately 2.1 ha or 5 acres;
2. the appellant placed approximately 5,000 cubic metres of fill on the lot;
3. there were at least 250 truckloads of fill; and
4. the deposited soil raised the ground level of Lot 806 by about one metre and after graded reduced it to about 25 cm.

20 It was open to the magistrate to find that the deposit of the fill constituted a 'development' for which the respondent's approval was required. Indeed, the magistrate was correct to so find. Grounds 3 and 4 of the appeal are not made out. They have no reasonable prospect of success.

21 In his grounds of appeal the appellant states that he believes that the $15,000 fine is too large in comparison to other recent prosecutions. He referred to a decision of the Magistrates Court in 2012 in the matter of City of Rockingham v Lorian Nominees Pty Ltd where Lorian had placed imported soil material on its land without obtaining planning approval from the City of Rockingham and was fined $27,500, which is 11% of the maximum fine. The appellant says that the quantity of soil was 10,000 cubic metres. The appellant says that the fine imposed on him is excessive in comparison to the fine imposed on Lorian Nominees.

22 In addition, the appellant said that the fine was too high given:

• unconditional approval had been granted to the appellant by the City prior to the trial on 10 September 2012;
• the sand was introduced onto the appellant's property for purposes relating to the existing land use, environment and animal welfare benefits;
• the appellant had been operating for over 20 years and this was a first offence considering the nature and impacts relating with a sheep holding facility and feed lot; and
• the appellant's matter is of a lower scale/nature in comparison to Lorian Nominees Pty Ltd.

23 Apart from the comparison with the sentence imposed on Lorian Nominees Pty Ltd, each of the matters referred to by the appellant were referred to by Her Honour in imposing sentence. Nevertheless, the appellant may appeal against the fine if the sentence was manifestly excessive.

24 In Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 Hasluck J said:

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].

25 In Swan Bay Holdings Pty Ltd the offending company undertook development of land without planning approval. The work involved construction of hardstand areas by filling, levelling and sealing part of the property. The company had also erected fences to create five separate lots or yards and constructed a simple roadway to provide access to the individual lots. A formal stop direction had been given which was not complied with. The company pleaded guilty and applied for retrospective development approval which was subsequently granted. That case involved one charge and an offender with no prior record. A fine of $150,000 was imposed. An appeal against the fine was dismissed.

26 In GT Homes Pty Ltd v Shire of York [2010] WASC 312 the appellant, GT Homes Pty Ltd, appealed against fines totalling $50,000 for two offences of using land for the purpose of storing waste material without planning consent contrary to s 218(a) of the Planning and Development Act 2005 (WA). Hall J referred to a number of cases involving convictions for similar offences and concluded that bearing in mind the relevant factors in that case and the range of penalties imposed for offences of this nature, fines of $25,000 on each charge cannot be viewed as being manifestly excessive [41].

27 In this case the relevant considerations included that the appellant was an individual not a company and was a first offender. He did not plead guilty and hence no discount or credit could be given on that account. Other relevant factors include:

• the offence involved the deposit of fill on an industrial scale 250 truckloads involving 5,000 cubic metres;
• the offence continued for more than five months between November 2010 and April 2011;
• the appellant was warned by the City in November 2010 that he required planning approval to undertake the fill;
• despite the warning, the appellant chose to continue with the fill until it was completed;
• the appellant did not apply for retrospective planning approval until after the fill was complete.

28 The maximum penalty was $50,000 and a daily penalty of $5,000 per day. The offence continued for 163 days, so the maximum daily penalty was $815,000. The magistrate chose to impose a single fine rather than a fixed sum and a daily penalty. Bearing in mind all of those matters, a fine of $15,000 cannot be viewed as being manifestly excessive.

29 After the hearing of this appeal the appellant sent a letter to the court. The letter made serious allegations against a City of Rockingham planning officer and requested that an investigation be launched into the allegations by an appropriate judicial authority. The letter further stated that the appellant had 'instructed a planner to investigate and seek the Town Planning Scheme 1 from the WAPC'. The letter went on to make further criticisms of the magistrate's decision. The appellant did not have leave to make any further submissions. The letter should not have been sent.

30 The leave of the court is required for each ground of appeal. Criminal Appeals Act 2004 (WA) s 9(2) provides that the court must not give leave to appeal on a ground of appeal unless it is satisfied the ground has a reasonable prospect of succeeding. I am not satisfied that any of the appellant's grounds of appeal have a reasonable prospect of succeeding. The appellant's application for leave to appeal is dismissed. Accordingly, the appeal is taken to have been dismissed.