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.