It is of infinite importance to the public that the acts of magistrates should not only be substantially good, but also that they should be decorous.
– Lord Kenyon, C.J., The King v. Sainsbury (1791), 4 T. R. 456.
We have previously written about the imposition of penalties for planning offences in a blog article relating to Taylor v City of Kwinana [2015] WASC 252 (Taylor). In this article, we refer to the recent planning case of City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 in which the Court of Appeal confirmed the excessiveness of the penalty imposed by a Magistrate in the first instance.
Bayblue Holdings Pty Ltd (Bayblue) was convicted in the Magistrates Court of the offence of failing to comply with a direction given to it under s 214(3) of the Planning and Development Act 2005 (WA) (PD Act). Bayblue carried out works involving extending part of the existing roof line by 6 metres to enclose an area forming a secure storage area. Other alterations had also been undertaken prior to Bayblue becoming owner of the land. Bayblue eventually sought retrospective planning and building approval for all existing unlawful development on the land, which approval was granted by the City of Swan (City).
Notwithstanding the grant of retrospective approval, the City lodged a prosecution notice on Bayblue. The Magistrate imposed a fine of $300,000 plus a daily penalty of $48,500 totaling $348,500.
On appeal to the Supreme Court, the conviction was quashed on the basis that the relevant entities that actually undertook the unauthorised alteration works were not Bayblue. A judgment of acquittal was entered, however, the Court went on say that if it were necessary to separately evaluate whether the penalty was manifestly excessive, it would uphold that ground and impose no penalty.
The City of Swan (City) appealed the Supreme Court’s decision on the ground that Bayview did undertake the subject development after it became the owner of the land. Before the Court of Appeal, Bayblue conceded that this ground should be upheld. In considering the mitigating circumstances and the facts of the case as submitted by Counsel for Bayblue, the Court of Appeal sentenced Bayblue to a fine of $17,500 with a daily fine of $100, totalling $27,200. Clearly, this penalty was drastically reduced (by more than a factor of 10) from that imposed by the Magistrate at first instance.
City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227 illustrates a number of important points:
- non-compliance with a direction issued by a local government has serious consequences and should never be ignored;
- regardless of whether retrospective planning approval has been granted, prosecution proceedings may be brought for a historical breach;
- the maximum penalties for a breach of non-compliance with a direction of a local government were significantly increased in 2011 – from a fine of $50,000 and a daily fine of $5,000 – and this increase is an indication that sentences should be increased to reflect Parliament’s revised view of the gravity of offences of that nature;
- legal representation is highly desirable, particularly when pleading guilty to a planning offence, to ensure that a manifestly unreasonable or excessive fine is not imposed.
Glen McLeod Legal has acted for many clients who have received direction from local government authorities for alleged unlawful structures, alterations or additions to land. We also act for clients who have had prosecution proceedings issued against them and can assist in achieving fair outcomes in these circumstances.
