Facing a town planning prosecution?

What legislation creates the offence?

Town planning prosecutions are governed by the Planning and Development Act 2005 (WA). Part 13 of the Act deals with enforcement and legal proceedings.

The formal enforcement proceedings provided for under the Act include the:

• relevant authority giving formal directions (Planning and Development Act s 214) and commencing prosecution;

• proceedings for an offence pursuant to section 218 of the Act; and

• the giving of infringement notices under section 228 of the Act.

Under the Act, if a development, or any part of the development, is undertaken in contravention of a planning scheme, an interim development order, or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner undertaking the development to stop, remove, pull down, take up, or alter the development, or to restore the land as nearly as practicable to its prior condition (Planning and Development Act s 214).

If a person does not comply with such a direction, then the responsible authority may itself remove or pull down the development, restore the land, or execute the work as required (Planning and Development Act s 215).

Furthermore, if a person contravenes either a provision of the Act, or a development order or planning scheme, or the responsible authority grants an application for approval of development subject to conditions, and the development is commenced contrary to those conditions, then the responsible authority may apply to the Supreme Court for an injunction (Planning and Development Act s 216).

Section 218 of the Act provides that a person who contravenes the provisions of a planning scheme or commences or carries out development in contravention of a scheme, or a condition imposed under the act commits an offence. A local government has discretion to decide whether to commence legal proceedings for in prosecution of an offence.

Other offence provisions are:

1. A person who commences or carries out works for enabling subdivision of land other than as approved under the act commits an offence (S 219);

2. A person who commences or carries out development in a planning control area without prior approval or in a manner which does not conform with the approval commits an offence (s 220);

3. A person who contravenes an interim development order commits an offence (s 221); and

4. A person who commences or carries out development or allows development to be commenced or carried out in a heritage place without prior approval or in a manner not in conformity with the approval commits an offence (s 222).

What are the potential penalties?

Unless otherwise provided, a person who commits an offence under the Act is liable to a fine of $200,000 and, a further fine of $25,000 for each day during which the offence continues (s 223).

However, under the Sentencing Act 1995 (WA) s 40(5) a body corporate may be liable to a fine of 5 times the maximum that could be imposed on a natural person. Therefore, a company may be liable to a fine of $1,000,000.

As an alternative to commencing prosecution for an offence, an offender may be given an infringement notice under section 228 of the Act, and ordered to pay a modified penalty. These are generally given when the breach is minor and can be remedied. Alternatively, they may be given where the local government authority deems that either for lack of evidence, or public interest reasons, or because of the potential expense that could be incurred, or some other reason, the offence is not worth prosecuting.

An infringement notice must be given within 6 months of the alleged offence being committed (s 228(2)). If the modified penalty is paid within 28 days, then the payment may prevent further legal proceedings being brought in certain circumstances (s 232). However, such a payment is not considered an admission for any civil or criminal proceedings (s 232(3)). 

Some recent cases

In Uxcel Pty Ltd v City of Bayswater [2013] WASC 5 the appellant real estate agency displayed a sign on a vacant block, advertising that the property had been successfully sold, without formal approval from the respondent, and in contravention of a planning scheme. The appellant erected the sign without approval, and was then informed by the respondent that planning approval was required and requested to remove the sign, however did not do so.

In the Magistrates Court the appellant pleaded guilty and was ordered to pay a fine of $50,000 in addition to $1476.45 costs. They appealed on two grounds, firstly, that the Magistrates’ reasons were inadequate, and second, that the sentence imposed was manifestly excessive (Uxcel Pty Ltd v City of Bayswater [2013] WASC 5, at [8]).

In relation to the first ground, the Judge found that the Magistrates’ reasons did not address the key issue which was the seriousness of the offence, and although the fine was only 5% of the maximum penalty, it was a substantial sum, and the reasons were inadequate (Uxcel Pty Ltd v City of Bayswater [2013] WASC 5, at [27] – [29]).

In relation to the second ground, the Judge referred to the principles set out by Hall J in Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431. The Judge found that the scale of the work undertaken is relevant to the sentence imposed, and distinguished between contraventions involving ‘easily reversible illegal use of the land’ and ‘construction and alteration of buildings’ (Uxcel Pty Ltd v City of Bayswater [2013] WASC 5, at [33] – [34]). Therefore, the sentence was excessive.

In City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 the respondent & a third party had applied for retrospective approval of alterations and development carried out by a previous owner of the land. They also asked for approval of alterations built by the third party after the respondent became the owner. The approvals were not given, and the appellant City of Swan served a direction ordering the appellant to remove the alterations. The respondent did not comply with the direction. However, they continued to seek retrospective approval of the structures. Such approvals were eventually granted however the City of Swan brought proceedings for failure to comply with the directions.

The respondent and third party were initially unrepresented, and the Magistrate fined them each $388,000 plus costs of $1,207. On appeal the Judge allowed the appeal and substituted a penalty of $32,700. The City of Swan appealed this order.

The Court of Appeal found that the charge against the respondent was bad for duplicity as it alleged two offences, one in respect of the previous alterations, and one in respect of the newer developments, whereas a charge under the Planning and Development Act must only allege one offence pursuant to schedule 1 clause 2(4) of the Criminal Procedure Act 2004 (WA) (City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227, at [85]).

In relation to sentencing, the Court of Appeal compared other cases concerning an appeal against penalties under the Planning and Development Act (City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 at [99] – [105]).

In G T Homes Pty Ltd v Shire of York [2010] WASC 312 a fine of $25,00 was upheld for failing to remove waste from rural land. 

In Corica v Throssell [2012] WASC 393 the appellant was fined $25,000 plus $500 per day for dumping landfill on residential land without approval.[5]

In Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39 the appellant was fined $75,000 plus $250 per day for continuing work on a development after directed to stop when building approvals expired.

The Court of Appeal found that a fine of $17,500 was appropriate with a daily penalty of $100, making the total penalty $27,200.

These cases demonstrate the importance of obtaining legal advice, as the ultimate penalty in each was a fraction of the penalty imposed at first instance.

Are you a victim of 'revenge porn'?

In Wilson v Ferguson [2015] WASC 15 the Supreme Court of Western Australia dealt with a "revenge porn" case.

What happened?

The plaintiff and defendant were each employed at a Fortescue Metals Group mine site as fly-in-fly-out workers. They met in 2011, moved in together in 2012, and were together until August 2013 when the relationship broke down.

During their relationship, the plaintiff and defendant exchanged sexually explicit photos of each other. The defendant also obtained, from the plaintiff’s phone, 2 sexually explicit videos of her, which he undertook not to show to anybody else.

The relationship deteriorated as the plaintiff suspected the defendant was cheating on her.

In August 2013, she texted him saying she wanted nothing to do with him.

In response, at 5.20 PM on 5 August 2013 the defendant posted via his Facebook page, 16 explicit photos and 2 videos of the Plaintiff either naked or semi-naked and engaged in sexual activities. They were accompanied by the caption ‘Happy to help all ya boys at home… Enjoy!’

The photos and videos were available to his 300 ‘Facebook friends’, many of whom worked on the same mine site. The photos and videos were taken down by the defendant at 7.00 PM that night, in response to requests from the plaintiff via text messages.

Because of the images being published, the plaintiff could not sleep, undertook counselling, and was unable to work and took leave without pay until 30 October 2013, losing wages of $13,404.

The defendant’s employment at the mine site was terminated on 14 August 2013.

Summary of the law the Judge relied on

The Defendant did not take an active part in the proceedings other than filing a defence, and was not present at the trial.

The Judge inferred that the defendant wanted to cause the plaintiff extreme embarrassment and distress, and was aware the images were private and he did not have the plaintiffs’ consent to show them to any other person (at [33]).

The Judge adopted the principle described by the Court in Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39, 50, in relation to proceedings for a breach of confidence. That is that a court will restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged (at [43]).

The essential elements of an equitable action for breach of confidence are that the information was of a confidential nature, that it was obtained in circumstances importing an obligation of confidence, and that there was unauthorised use of the information (at [46] citing West Australian Newspapers Ltd v Bond [2009] WASCA 127).

The Judge referred to Gleeson CJ’s comments in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, [34] – [35], that a private image may constitute confidential information, and that “the requirement that disclosure or observation of information or conduct would be highly offensive to a reasonable person of ordinary sensibilities is in many circumstances a useful practical test of what is private” (at [53]).

For the reasons below, the Judge found that the defendant had breached his equitable obligation owed to the plaintiff to maintain the confidentiality of the images (at [55]).

Firstly, the intimate images of the plaintiff had the necessary quality of confidence about them, which was clear from their explicit nature, and the discussions between the plaintiff and defendant in which the plaintiff emphasised their deeply personal nature ([56]).

Second, the circumstances in which the defendant obtained the images imposed an obligation of conscience to maintain the confidentiality of the images ([57]). The nature of the photographs and the circumstances in which they were obtained made it obvious to a reasonable person standing in the defendant’s shoes that the images were for his eyes only and not to be disclosed to anyone else. Such disclosure would cause extreme embarrassment and distress to the plaintiff, which in fact was the whole reason for his publishing the images ([58]).

Third, the defendant clearly misused the images by making them available for viewing and downloading to hundreds of Facebook friends, many of whom worked with both the defendant and the plaintiff. This was extremely distressing to the plaintiff as shown by her needing to take time of work and undertake counselling ([59]).

Why did the Judge award $48,404?

The Judge granted a permanent injunction to prevent the defendant from publishing photos or videos of the plaintiff engaging in sexual activities or in which the plaintiff is naked or partially naked. In addition, the Judge awarded equitable compensation for the breach of confidence.

The Judge referred to the case of Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health (1990) 22 FCR 73 as authority for the Court’s inherent jurisdiction to grant relief through monetary compensation for the breach of an equitable obligation, whether of trust or confidence (at [69]).

However, the question was whether equitable compensation could be awarded to compensate the plaintiff for non-economic loss (embarrassment and distress). Until recently, equitable compensation was only awarded to compensate for economic loss ([72]).

The Judge relied on Giller v Procopets [2008] VSCA 236 in which the Victorian Court of Appeal held that monetary compensation for emotional distress caused by the release of confidential personal information is available in the exercise of the Court’s inherent equitable jurisdiction ([73] – [78]).

The Judge found that technological advances have increased the ease and speed with which communications and images can be disseminated, therefore in many cases there will be no opportunity for injunctive relief ([80]).

Therefore, the approach taken in Giller, is an appropriate incremental adaptation of the established equitable principle, to accommodate the nature of electronic communications in contemporary Australia ([82]).

The Judge held that compensation should take account of the fact that the publication was intended to cause harm to the plaintiff, however the plaintiff had not sustained a psychiatric injury, therefore the amount should not be disproportionate to amounts commonly awarded for pain and suffering in tortious personal injury cases ([85]).

He awarded $35,000 in addition to economic loss of $13,404.

What about legal costs?

The plaintiff sought indemnity costs. However, the Judge applied the principles set out by the Court of Appeal in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S), [10], that the discretion to award indemnity costs may be exercised where the unsuccessful party has engaged in unreasonable or improper conduct, such as persisting in a case which is hopeless (at [88]).

The Judge considered that the defendants’ failure to admit the plaintiff’s claim was not so unreasonable as to justify awarding indemnity costs, the plaintiff was simply put to proof of her case ([89]).

Therefore, the Judge ordered the defendant pay the plaintiff’s costs of the action.

Facebook defamation

Have you been defamed on Facebook?

Being defamed on Facebook is horrible.

You should consider issuing a concerns notice and commencing a Court case, in order to protect your reputation.

A previous decision

In 2014 the District Court of Western Australia handed down a decision, finding in favour of a plaintiff in a Facebook defamation case.

In Dabrowski -v- Greeuw [2014] WADC 175 the facts were that:

1. The parties were a separated husband and wife.

2. In December 2012 the defendant (the wife) posted on her public Facebook page an entry saying 'separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe'. 

3. The Judge found she had admitted that she posted the Facebook post. 

4. It was removed 4 months later, in February 2013.

At [183] the Judge stated:

To say that a person has for 18 years subjected their partner to domestic violence and abuse and that their children need to be kept safe from that person, tends to diminish the esteem in which that person is held by the community and/or diminish his standing in some respect and would lead an ordinary reasonable person to think lesser of that person and is defamatory.

The Judge decided that:

[248] Pursuant to s 7 of the Defamation Act, Mr Dabrowski is not required to prove special damages. Section 34 of the Act requires that any damage awarded have an appropriate and rational relationship to the harm actually suffered. The damages must be realistic.

[249] I have found that Mr Dabrowski was defamed. Mr Dabrowski has not claimed any consequential financial loss. Damages are appropriate.

The Judge award the plaintiff (the husband) $12,500, as well as interest on that money and also his legal costs.

The takeaways from the case

1. We should not feel powerless or in a weak bargaining position when someone defames us on Facebook, because it is realistic to go to Court over it.

2. You should hire lawyers like me, who are conscious of the realities of legal costs (and) who will manage the case so that decisions are made along the way that maximise the recovery of legal costs from the other side.

Overview of what a 'concerns notice' is in defamation law in Western Australia

Uniform defamation legislation is in place across Australia to promote speedy and non-litigious methods of resolving defamation disputes (Defamation Act 2005 (WA) s 3(d)).

   The first step in a defamation proceeding is for the victim of defamation to issue what is known as a concerns notice.

   The issuing of a concerns notice provides an avenue for the parties to resolve the matter without resorting to formal legal proceedings.

   A concerns notice is the document which outlines exactly what defamatory statements are alleged to have been made, when the statements were made, who they were published to, what defamatory imputations can be drawn from the publication, and what amends are requested.

   The purpose of a concerns notice is to set in motion the offer to make amends set out in Part 3 of the Defamation Act 2005 (WA).

For a notice to be a concerns notice:

1. It must be in writing (Defamation Act s 14(2)(a)); and

2. It must inform the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question (Defamation Act s 14(2)(b)).

    When a person receives a concerns notice they may request particulars of the defamatory imputations if they either haven’t been provided or haven’t been provided adequately (Defamation Act s 14(4) & (5)).

    Alternatively, a statement of claim will operate as a concerns notice for the purposes of the Defamation Act if it complies with the requirements of s 14(2) (Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, [92]).

   Once a person has been issued with a concerns notice then the publisher has 28 days to make an offer to make amends (Defamation Act s 14(1)(a)).

   It is implicit in the construction of s 14(1) of the Defamation Act that a person has a reasonable period of time to respond to the content of a concerns notice (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   In some cases, it may be that after the expiry of a reasonable period of time to respond, the person in receipt of the concerns notice can be taken to have been aware of the existence of the alleged publications, and the concerns notice could even function as evidence to that effect (Douglas v McLernon (No 4) [2016] WASC 320, [262]).

   If the person could put a stop to ongoing publication (by another person), then an inference may be drawn in certain circumstances that the person then either acquiesced or participated in the publication from that point on. 

Being self-aware when making decisions in a legal case

Decisions are hard to make. 

They are extra hard in the context of a legal dispute, because the decisions usually involve a lot of uncertainty and trying to predict the behaviour and the decision-making of other people (such as an opponent or a Judge/Magistrate).

I was impressed with the analysis about decision-making in an article I read on The West Australian online edition the other day.

It struck me how we can, and should, be more deliberate and self-aware with our decision-making.

This is the link to the article:

https://thewest.com.au/lifestyle/health-wellbeing/are-you-suffering-from-decision-fatigue-ng-b88331446z

I especially liked this quote:

“There are numerous psychological functions working together in making decisions: Will, mood, thought process, perception, orientation, concentration, memory, insight and judgment.”

Forecaster says iron ore could fall into $US20s in 2016 before rebound

Iron Ore in the $US20s will mean more bankruptcies and insolvencies in Western Australia.

Our boom-bust economy will be in serious trouble.

Any creditors or debtors in need of advice should email me: rgraham@vogtgraham.com.au

"I think we’re going through a massive structural change in Perth at the moment"

Structural change in the real estate market is a "breeding ground" for disputes.

These include:

• Buyers deciding not to follow through at settlement
• Misleading representations being made about rezoning proposals
• Issues about what should happen to a deposit if the buyer does not settle on the contract
• Off-the-plan disputes, where an apartment at settlement does not match what was described by the developer when the contract was originally signed

I have acted for clients in all of these scenarios, and more, when it comes to disputes about real estate.

Email me if you want to discuss how I can help with your real estate dispute: rgraham@vogtgraham.com.au

See me if you need a loan repaid

I read this news article today:  Perth leads nation for falling house prices in 2015.

In a downwards economy, formal avenues for credit tighten up.

People lose their jobs, but at the same time, see the price of their home and investment properties falling.

They often find it hard to make ends meet, but now cannot easily borrow against real estate to cover the shortfall.

Their next port of call becomes family and friends - and then what if you are that family or friend and you have loaned money (say, tens of thousands of dollars) and not been paid back?

Unfortunately, and sadly, you may need to take formal steps.  This at least might put you ahead of other creditors.

I am very experienced in disputes of this kind.  You should email me so we discuss your options.

"Figures compiled by CoreLogic-RP Data show that the proportion of WA properties selling at a loss has doubled over the past year"

Changes in the real estate market always lead to more law suits between buyers and sellers.

Falling and rising markets (we seem to be falling now) create: (a) incentives; (b) changes in circumstances, which mean contracts can often get terminated before settlement.

This leaves questions about:

• who gets the deposit, and

• whether to sue for the difference in price under the old contract and what the house will now get sold for under a new contract, with a new buyer. 

Vogt Graham Lawyers has acted in many real estate disputes in the past.  

Contact us if you would like to speak about how we can help.

New District Court decision about Inactive Cases List in the Magistrates Court

In my opinion her Honour misdirected herself by focusing exclusively on how she anticipated the appellant was likely to conduct the case in the future, rather than how the case could be conducted under the court's auspices.

Judge McCann at [78] in THORPE -v- SCHULZ [2015] WADC 149.