A number of recent appeal decisions in the Supreme Court of Western Australia have highlighted the seriousness of the offence and penalty provisions of the Planning and Development Act 2005 (WA) (PDAct). The decisions have also helped to identify the relevant considerations and factors that a court takes into account in sentencing for breaches of the PD Act.
The decisions also highlight the effect of increases in penalties that were imposed on offences under the PD Act in 2011 and the much greater penalties that companies may be exposed to compared to individuals.
In 2011 the penalties for planning offences were increased from $50,000 (for individuals) to $200,000 and from a daily fine of $5,000 to $25,000, and consequently for companies was increased to $1,000,000 with a potential daily fine of up to $125,000.
Three recent cases that have highlighted the seriousness and consequences of these offence and penalty provisions are;
In Caruso, the appellant initially undertook re-stumping maintenance work to a heritage listed building (Bridgewater) on Bussell Highway in Margaret River but then carried out substantial construction work without obtaining the appropriate planning approval or building permit. The appellant was subsequently charged by the Shire with an offence of commencing development of the property without planning approval. He was also charged with an offence for doing building work without a building permit.
The appellant pleaded guilty to both offences and at first instance the magistrate sentenced the appellant by imposing a fine of $50,000 for the planning offence and a fine of $10,000 for the building offence. The appellant was also ordered to pay the Shire’s costs.
On appeal to the Supreme Court, the appellant argued that the fine of $50,000 for the planning offence was manifestly excessive having regard to the relevant sentencing factors and circumstances of the case. The appellant argued that his offending was at the lower end of the scale of seriousness, that there was a very low number of aggravating factors compared to matters in mitigation, and that the penalty imposed failed to address the appellant’s financial circumstances.
Fiannaca J held that even if the penalty imposed might still be regarded as unusually high, he did not regard it as such a disproportionate a sentence as to manifest an error. Fiannaca J noted that the Magistrate’s sentence contained a substantial deterrent component which was appropriate, given the increase in maximum penalties in 2011 and reflected a concern that it was necessary to give full effect to the parliament’s intention that planning offences should be regarded more seriously, especially where heritage listed buildings are affected.
In OzTran, the appellant was the lessee of a property in Port Hedland located in an industrial zone. Residential use of the property was prohibited under the relevant zoning in the Town’s planning scheme. Officers of the Town inspected the property and found 6 transportable units (more typically known as ‘dongas’) being used by employees for residential purposes. The appellant failed to remove the units when requested and the Town issued proceedings.
The magistrate who heard the charge imposed a fine of $600,000 and ordered the appellant to pay the Town’s costs. The appellant appealed to the Supreme Court on the grounds that the penalty was manifestly excessive.
On appeal Banks-Smith J held that the magistrate had erred in relation to correct sentencing principles and allowed the appeal. Banks-Smith J held that an appropriate starting point for a penalty should be the sum of $400,000 and then reduced that sum by 25% because of the early plea of guilty and by a further sum to reflect a lack of relevant offending history. Taking into account these discounts, Banks-Smith J imposed a substituted penalty of a fine of $280,000.
Banks-Smith J noted that the authorities made clear that commercial benefit is a factor to be taken into account in assessing the seriousness of the offence, as well as the circumstances of the offence and any aggravating factors. She noted that the cases had established that the level of any fine should be such that as is not merely seen as a cost of doing business; it should be sufficiently high to deter repetition by the offender. Notwithstanding that, Banks-Smith J held that the magistrate erred in taking an assumed commercial benefit as the starting point for assessing a suitable penalty, and also that the magistrate erred in taking into account the assumed effects of the offence on the Town’s economy or on legitimate providers of accommodation.
In Austrend, the appellant operated a business supplying high quality stone, granite and marble benchtops on a site within a General Industry zoned area. Acting on a complaint, the City’s officers inspected and found the car parking area of the site was being used to store large sheets of stone, granite and marble used for the construction of the benchtops. The materials were stored over nine marked car parking bays on the eastern side of the property and within the accessway adjacent to the car parking bays. The company was requested by the City to comply with the applicable conditions of the planning approval and to remove the stored items but after the appellant’s failure to remove these items, the City commenced prosecution.
The magistrate held that a daily penalty would not be imposed but that the fine would be intended to take into account the need for a penalty to act as a general deterrent to be significant enough and not to be just written off as an acceptable cost of business. In having regard to the plea of guilty and after applying a discount, the Magistrate imposed a fine of $250,000 and costs. The appellant appealed to the Supreme Court on a ground that the sentence imposed was manifestly excessive.
In the appeal the appellant argued that the characterisation of the offending was towards the lower end of seriousness and that there were mitigating factors in particular issues of inadvertence, there was little commercial benefit in committing the breach, and the relatively low level scale and impact of the breach.
On appeal, McGrath J observed that it was of primary importance in sentencing for this type of offending to impose penalties upon the Court that deters the particular offender from future breaches and to also operate as a general deterrent for others.
McGrath J accepted that the fine of $250,000 imposed by the magistrate represented a significant imposition on the appellant’s financial means. The appellant had no prior relevant convictions and had pleaded guilty at the first reasonable opportunity. McGrath J further noted that the appellant did take action to rectify the breach but that there were logistical challenges in not complying immediately. In taking account of all relevant circumstances McGrath J gave leave to allow the appeal and determined that the fine of $250,000 should be set aside and a fine in the amount $40,000 should be imposed instead.
The recent cases reveal the seriousness with which planning offences are considered in the courts and the effect that heavier prescribed penalties have had in the sentencing of offenders by the courts.
The significant penalties imposed by the court, particularly for corporate entities, confirms the need to carefully review compliance with the relevant town planning schemes and approval conditions on a regular basis. Further, in the event that breaches or potentially breaches have been identified, considered legal advice needs to be taken in order to understand the role of prosecution or enforcement or its construction of a defence or plea in mitigation if prosecution is commenced.
If you have any concerns about your existing approvals and/or are concerned about potential enforcement, please contact the Lavan Planning and Environment team.