The use and development of land in Western Australia is governed by the Planning and Development Act 2005 (WA) (PDA). Part 13 of the PDA deals with enforcement and legal proceedings, including offences under the PDA.
The formal enforcement proceedings provided for under the PDA include:
- the relevant authority giving formal directions pursuant to s 214 of the PDA;
- the proceedings for an offence pursuant to s 218 of the PDA; and,
- the giving of infringement notices under s 228 of the PDA.
Section 218 of the PDA provides that a person who contravenes the provisions of a planning scheme or commences or carries out a development in contravention of a scheme, or a condition imposed under the PDA commits an offence. A local government has discretion to decide whether to commence legal proceedings for the prosecution of an offence.
Other offence provisions are:
- a person who commences or carries out works for enabling subdivision of land other than as approved under the PDA commits an offence (s 219);
- 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);
- a person who contravenes an interim development order commits an offence (s 221); and,
- 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 and offence (s 222).
What are the potential penalties?
Offences under the PDA can result in substantial penalties being imposed, having regard to the significant maximum penalties and daily penalties that can apply to offences of that kind:
- Offenders that are natural persons can attract a fine of up to $200,000 and, in the case of a continuing offence, a further fine of $25,000 for each day during which the offence continues.
- Offenders that are companies can attract a fine of up to $1,000,000 and, in the case of a continuing offence, a further fine of $125,000 for each day during which the offence continues.
As an alternative to commencing prosecution for an offence, an offender may be given an infringement notice under section 228 of the PDA 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)).
Recent Cases
In Coote v Shire of Serpentine-Jarrahdale [2022] WASC 326, we successfully acted for the accused in appealing the Magistrates Court’s decision to impose a fine of $45,000 for an offence relating to the unauthorised use of land for the running of a cabling business and ultimately obtained a reduced fine of $21,000, being a $24,000 reduction. We also obtained an order that the Shire pay a contribution towards the accused’s legal costs in the sum of $5,000.
In the above matter, the Supreme Court considered the following factors to be relevant in determining the appropriate penalty for offences under the PDA:
- whether the breach was flagrant or inadvertent;
- whether the breach was permanent or reversible;
- the scale and impact of the breach; and,
- the extent of commercial benefit arising from the breach.
In O’Malley v Shire of Northam [2020] WASC 429, the accused was not ordered to pay a daily penalty because:
- the continuing breach did not create any economic benefit for the accused;
- the accused was not aware of the breach prior to the prosecution notice being issued;
- the breach did not impact any other properties surrounding the accused’s land; and,
- considering the accused’s financial position, a daily penalty would arguably have been excessive.
In City of Swan v Bayblue Holdings Pty Ltd [2015] WASCA 227, the accused had applied for retrospective approval of alterations and a development carried out by a previous owner of the land. They also asked for approval of alternative built by a third party after the accused became the owner.
The approvals were not given, and the City of Swan served a direction ordering the accused to remove the alterations. The accused 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 direction.
The accused was initially unrepresented, and the Magistrate imposed a fine of $388,000 plus costs of $1,207. The accused appealed, and the Judge allowed the appeal and substituted a penalty of $27,200.
The Court of Appeal found that the charge against the accused was bad for duplicity as it alleged two offences; one in respect of the previous alterations and another offence in respect of the newer developments, whereas the PDA must only allege one offence pursuant to schedule 1 clause 2(4) of the Criminal Procedure Act 2004 (WA).
Contact Us
It is clear to see that, even if pleading guilty, obtaining competent legal advice and representation could save you tens of thousands of dollars.
If you have received a prosecution notice by City, Town, Shire or Council, please contact Ben Sasson as soon as possible for a free and confidential initial telephone consultation.
