Planning prosecutions - clarifying the time limit on commencing prosecution

The Supreme Court has handed down a decision which changes the way that prosecutors and accused parties will need to address whether a prosecution proceeding has been commenced within time, under the Planning and Development Act 2005 (WA) (and potentially other types of proceedings).

The decision of Mocilac v City of Fremantle [2014] WASC 56 (Mocilac) concerned a laneway between two residence which was closed off by the appellants, by the construction of  limestone pillars, double iron gates and a free standing shed of steel cladding.

The appellants obtained no planning approval for the construction of the pillars, gates and the shed, and accordingly, the respondent local government issued a prosecution notice to the appellant alleging unauthorised development.

One of the defences raised by the appellants was that the prosecution notice, which was issued on 20 January 2012, was not capable of being prosecuted, because the charge was out of time in that it was commenced outside the 12 month period specified by s 21 of the Criminal Procedure Act 2004 (WA) (CPA).  Relevantly, the evidence showed that the structures were completed in September 2010.

Section 21(2) of the CPA provides as follows:

A prosecution of a person for a simple offence must be commenced within 12 months after the date on which the offence was allegedly committed, unless another written law provides otherwise or the person consents to it being commenced at a later time.

In construing s 21(2) of the CPA, the Court noted that s 21(2) had replaced the former s 51 of the Justices Act 1902 (WA) (Justices Act), which provided as follows:

In any case of a simple offence or other matter, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 12 months from the time when the matter of complaint arose.

As can be seen from the legislation above, s 21(2) of the CPA does not prescribe a time limitation of 12 months from the date of the carrying out of the offence (as s 51 of the Justices Act provided) but rather, within 12 months after the date on which the allegation was made.

The minor distinction means that the 12 month limitation would commence from the date that the prosecuting authority first alleged that there was an offence.  Therefore, it would be possible to argue that where an allegation of unauthorised development is made, such as by way of correspondence alleging unauthorised development, or by way of a Direction Notice issued to a person that carried out alleged unauthorised development, that prosecuting authority could not commence prosecution beyond 12 months of the date of that correspondence/Direction Notice.

This position is supported by the conclusions made by the Court, at paragraph [35] that:

[T]he change of wording introduced by s 21(2) of the CPA reveals an intention that the date of the offence is less critical.  It is not meant to provide an immunity from prosecution on the basis that the offence occurred more than 12 months before a prosecution commences.  Rather I conclude that the intention of Parliament was to prevent tardiness on the part of a prosecuting authority by requiring it to commence a prosecution within 12 months of the date on which the offence was allegedly committed.  Otherwise there is no explanation for the changes introduced by the language of s 21(2) of the CPA.

A second issue dealt with by the Court was whether construction of a building or structure can constitute an ongoing use and a continuing offence.  The Court considered the relationship between the concepts of use and physical development with reference to existing case law, and concluded that the act of carrying out physical development unlawfully can constitute a continuing offence and a consequence of the ongoing use.

Whilst not expressly stated by the Court, it would not be the case that a physical development could constitute a continuing offence, where the concept of use is not present, such as where a physical development is abandoned or simply not used.

The approach in Mocilac was recently affirmed by Her Honour Justice Pritchard concluded in Beydoun v City of Stirling [2015] WASC 25.

Lavan Legal comment

If you or your client has been the subject of long investigations and/or an allegation by a prosecuting authority in relation to alleged planning offences, then that authority may be precluded from commencing prosecution beyond 12 months of the date that the allegation was made and any prosecution proceeding brought beyond 12 months from this date may be time barred.  That said, in light of this decision, unlawful development conducted longer than 12 months ago, may still be the subject of prosecution if no allegation has yet been made.

Disclaimer – the information contained in this publication does not constitute legal advice and should not be relied upon as such. You should seek legal advice in relation to any particular matter you may have before relying or acting on this information. The Lavan team are here to assist.