Carden v City of Wanneroo - [2025] WASC 54

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CARDEN -v- CITY OF WANNEROO [2025] WASC 54
CORAM:   COBBY J
HEARD:   7 OCTOBER 2024
DELIVERED          :   26 FEBRUARY 2025
FILE NO/S:   SJA 1019 of 2024
BETWEEN:   CILLA LOUISE CARDEN
Appellant
AND
CITY OF WANNEROO
Respondent

ON APPEAL FROM:
For File No:   SJA 1019 of 2024
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M HARRIES
File Number            :   JO 9235/2021

Catchwords:

Criminal law - Statutory interpretation - Meaning of 'structure' in Planning and Development Act 2005 (WA) and Building Act 2011 (WA) - Appellant convicted of failing to remove screen as directed - Application to set aside conviction dismissed - Extension of time in which to appeal conviction required

Legislation:

Building Act 2011 (WA)
Building Regulations 2012 (WA)
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Criminal Procedure Regulations 2005 (WA)
Dividing Fences Act 1961 (WA)
Interpretation Act (WA)
Limitation Act 2005 (WA)
Local Government Act 1995 (WA)
Magistrates Court (General) Rules 2005 (WA)
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Leave to appeal refused
Extension of time to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	T L Beckett

Solicitors:

Appellant	:	In person
Respondent	:	McLeods

Cases referred to in decision:

Allmark v City of Stirling [2013] WASC 122
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Ballina Shire Council v Joblin [2022] NSWLEC 90
Fazio v St John‑Ayre [2017] WASC 62
Glew v The Governor of Western Australia [2009] WASC 14
Glew v The Governor of Western Australia [2009] WASCA 123
JS v The State of Western Australia [2014] WASCA 177
Kelly v Fiander [2023] WASC 187
Lancaster v R [1989] WAR 83
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Nelson (in his capacity as trustee of the property of Douglas, a bankrupt) v Greenman [2024] VSC 704
R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400
Re Magistrate M M Flynn; Ex parte McJannett [2013] WASC 372
SZTAL v Minister for Immigration and Border Protection [2017] HCA (2017); 262 CLR 362
Tey v Plotz [2010] WASC 163
Wimbridge v The State of Western Australia [2009] WASCA 196

COBBY J:

The appellant was convicted in her absence in the Magistrates Court of Western Australia on 5 November 2021 for failing to comply with a direction given under s 214(3) of the Planning and Development Act 2005 (WA) (Planning Act) to remove a screen within the time specified, contrary to s 214(7) of the Planning Act.
The appellant was fined $2,500 and ordered to pay costs of $1,409.70.
Well over two years later, on 2 February 2024 the appellant filed an application to set aside that decision pursuant to s 71 of the Criminal Procedure Act 2004 (WA) (CPA).[1] On 1 March 2024 a different magistrate dismissed that application, taking into account the delay in making it, the reasons for the appellant's failure to attend the hearing in November 2021 and that the appellant did not have a good defence to the charge.
[1] The applicable provision was s 71(2), CPA.
When the appellant was asked on 1 March 2024 why she had not attended court in response to the charge, the appellant said first that the charge was 'a vexatious, specious, ridiculous claim',[2] asserting that she had 'compliance' at the time the screen had been erected and 'at the time of the complaint',[3] and secondly, that she thought 'it [the prosecution notice] was a joke'.[4]
[2] ts 6, 1 March 2024.
[3] ts 6, 1 March 2024.
[4] ts 17, 1 March 2024. See also ts 21, 1 March 2024.
On 26 March 2024 the appellant filed an appeal notice in relation to the learned magistrate's refusal on 1 March 2024 to set aside her conviction. The appeal notice is ambiguous, because it also contains details of the appellant's November 2021 conviction and the penalty imposed on that occasion.
For the reasons which follow, there is no appeal from the decision made on 1 March 2024 to refuse to set aside the conviction.
Further, as the appellant represented herself throughout the appeal, the appeal notice is ambiguous and the respondent made submissions on the basis that the appellant's appeal concerned the 2021 conviction, I have also considered the merits of the matters raised by the appellant in respect of her conviction.
Approaching the appeal on that basis, none of those matters give rise to an arguable ground of appeal. Had the necessary extension of time in which to appeal been sought, I would have refused it for that reason.
I deal first with the appeal identified in the appeal notice, being in respect of the learned magistrate's decision made 1 March 2024 to refuse to set aside the conviction entered on 5 November 2021 pursuant to s 55 of the CPA in the appellant's absence.
Fiannaca J considered the question whether a decision made under s 72 of the CPA refusing an application under s 71 of the CPA is amenable to appeal in Fazio v St John‑Ayre.[5] Having reviewed the authorities, his Honour held that it was not, concluding:[6]
For the reasons I have given, I am respectfully of the view that an analysis of s 6 and s 7 of the Criminal Appeals Act does not support the assumption that an appeal lies from a decision on an application under s 71 of the Criminal Procedure Act. In my opinion, such an appeal does not lie under s 7.
[5] Fazio v St John‑Ayre [2017] WASC 62.
[6] Fazio v St John-Ayre [89].
I adopt, without repeating here, his Honour's analysis. As appeals are a creature of statute,[7] no appeal lies from a decision of a magistrate to refuse to set aside a conviction entered in the absence of the accused.
[7] JS v The State of Western Australia [2014] WASCA 177 [4].
To the extent that the appeal concerns the magistrate's refusal to set aside the appellant's conviction, leave to appeal must therefore be refused.
Assessing the appeal notice as constituting an appeal against the November 2021 conviction, as the appellant clearly intended, the appellant requires an extension of time in which to appeal.
An appeal against a decision of a court of summary jurisdiction cannot be commenced later than 28 days after the decision unless the court orders otherwise,[8] although an extension of time to appeal will be granted if it is in the interests of justice to do so.[9]
[8] Criminal Appeals Act 2004 (WA), s 10(3).
[9] Wimbridge v The State of Western Australia [2009] WASCA 196 [43] (Wimbridge).
In Lancaster v R Malcolm CJ said that it is well‑settled that where there has been lengthy delay the court requires exceptional circumstances to be shown before granting an extension of time, unless it can be shown that there will be a miscarriage of justice if an extension is not granted.[10]
[10] Lancaster v R [1989] WAR 83, 85.
In Wimbridge v The State of Western Australia,[11] Buss JA (as his Honour then was) identified the five principal factors generally considered in deciding whether to exercise the discretion to extend time as follows:
First, the nature and extent of the delay. Secondly, the reasons for delay. Thirdly, the proposed grounds of appeal and their merits. Fourthly, the prejudice to the applicant if an extension of time is not granted. Fifthly, the prejudice (if any) to the State or the Crown if an extension of time is granted. These factors are not intended to be an exhaustive statement of the relevant considerations. No doubt, in a particular case, there may be additional factors.
[11] Wimbridge [45].
The delay in this case is extensive. The reasons for it are not explained, although I infer from the transcript of the hearing before the magistrate on 1 March 2024 that the appellant did not take any action in relation to her conviction until a garnishee notice was issued in relation the fine imposed.
As to the proposed merits of the appeal, the appellant's grounds of appeal comprise 33 pages. There are 62 separate 'grounds' identified in the document, but many of the 'grounds' comprise submissions founded upon incorrect or irrelevant legal bases, or assertions of misconduct against the learned magistrate, the legal practitioner representing the respondent, and the respondent's employees.
The remaining grounds advance pseudo‑legal propositions which are devoid of merit, incomprehensible, or both. For example, 'Ground: 51' reads in part:
In the Supreme Court of Western Australia in Wayne Kenneth Glew 2107 of 2008 and Governor of Western Australia CACV 20 of 2009 before CORAM: CORBOY J and Mr Leith, it was established that the name in all Capital Letters is a legal fiction a Body Corporate not the living man or woman present in the court the Supreme Court has no jurisdiction at law to process a living man or woman no jurisdiction, this proceedings in the Magistrate Court were commenced by Flesh and blood man who was converted by the Magistrates Court to a Legal Fiction Entity by the Prosecution Notice under Reg: 5. Under the system of law that operates in this state, only a 'person' can do or be deemed to have done 'an act or omission which renders the person doing the act or omission liable to punishment', Criminal liability attaches to a human being, the Living Man, the oxymoron System of Law in the State relied on by the State Courts, any Person before any Court is a Legal Fiction Entity, a Dead Entity Ward of the State.
In Glew v The Governor of Western Australia[12] Hasluck J dismissed arguments that certain Commonwealth and Western Australian legislation had been invalidly passed as frivolous and vexatious. The Court of Appeal dismissed the appeal from that decision on the basis that the appeal was entirely without merit.[13]
[12] Glew v The Governor of Western Australia [2009] WASC 14. The judgment referred to has been identified by reference to the matter number of the proceedings.
[13] Glew v The Governor of Western Australia [2009] WASCA 123 [21]. Again, the relevant judgment has been identified by reference to the matter number of the proceedings.
There is no reference in either decision to the proposition for which they are cited as authority by the appellant.
That proposition is devoid of merit. The suggestion that 'the name in all Capital Letters is a legal fiction a Body Corporate not the living man or woman present in the court' is an example of the 'straw man' fiction repeatedly rejected in all Australian, and other, courts.[14]
[14] See Nelson (in his capacity as trustee of the property of Douglas, a bankrupt) v Greenman [2024] VSC 704[67] ‑ [78] and the authorities there cited.
The appellant's adoption of that fiction is evidenced by her reference to herself in 'Ground: 59' as 'the woman called 'Cil': Cilla‑Louise: of the Family: Carden: the living breathing woman', and her references to herself as 'Cil: Cilla‑Louise Carden' and 'Cil: Cilla‑Louise: of the family: Carden' in her affidavits filed in the course of the appeal, although her appeal notice was filed in the name Cilla‑Louise Carden.
As McKechnie J said in Re Magistrate M M Flynn; Ex parte McJannett:[15]
Finally, judges administer justice according to law. They are not required to expend judicial time, a scarce public resource, on applications that have no legal foundation and involve deluded understanding of the law.
[15] Re Magistrate M M Flynn; Ex parte McJannett [2013] WASC 372 [15].
On the hearing of the appeal, however, the appellant (with the assistance of a next friend) generally confined herself to submissions concerning issues of statutory construction, the identification of matters said to constitute a defence to the charge, including various limitation periods, and some form of estoppel.
Doing the best that I can to identify them, the issues raised by the appellant which did not involve allegations of misconduct or pseudo‑law were that:
(a)she had an arrangement with her neighbours under the Dividing Fences Act 1961 (WA) authorising the erection of the screen, which provided a defence to the charge;
(b)the provisions of the Building Act 2011 (WA) did not apply to the erection of the screen, or if they did, any prosecution for the erection of the screen was statute barred;
(c)any prosecution was statute barred by operation of the Limitations Act 2005 (WA);
(d)the respondent was not entitled to prosecute the appellant for failing to comply with the direction to remove the screen, because she had been told years previously that it did not require development approval;
(e)the screen did not constitute a structure requiring development approval under the Planning Act;
(f)the appellant had not been served with notice of the Magistrates Court prosecution as required by law, so that her conviction was invalid.
Although there was no admissible evidence as to whether the respondent had previously told the appellant that the erection of the screen did not require development approval, I have assumed, in favour of the appellant, that occurred.
Similarly, there was no admissible evidence as to whether the appellant had an agreement with her neighbours regarding the erection of the screen. Again, I have assumed, in favour of the appellant, that was so.
There was little evidence of the screen itself. A statutory declaration of Serge John Dillinger made 18 May 2024 attached to the appellant's affidavit sworn 24 May 2024 referred to the screen having been erected in August or September 2010 'inside the boundary line and a non‑structural structure'. Mr Dillinger described the screen as a privacy screen, and further, as a 'non load bearing structure, not part of building. Wooden posts and shade cloth'.
A photograph dated 20 August 2019 attached to the appellant's affidavit sworn 2 February 2024 and filed in support of the appellant's application to set aside her conviction[16] showed a series of wooden posts extending beyond the top of what appears to be a standard residential Colourbond fence. Shade cloth appears attached to the posts, the shade cloth extending some distance above the height of the fence.
[16] Which the learned magistrate considered in the context of the application to set aside the conviction: ts 2, 7, 1 March 2024.
A memorandum from the respondent's Compliance Officer to the Co‑ordinator Health and Compliance dated 8 July 2019 tendered by the appellant[17] contained a reference to it having been 'established' that the posts ranged from 2.5 m to 2.9 m in height, the screen being approximately 18.4 m long.
[17] Exhibit 3.
On 12 March 2020, the respondent wrote to the appellant by email to say she was required to either remove the screen or obtain retrospective planning approval for its erection. That email stated in part:
In December 2019 the City received legal advice which clarified that a retrospective building application for unauthorised structures built before April 2012 (the inception of the Building Act) was optional. In short, the City could not enforce that an application be submitted, only suggest that one is. However, although the City is restricted to enforcing the submission of a retrospective building application to anything constructed post April 2012, there are no such restrictions should a structure require planning approval.
What this means in relation to your screening is that we will shortly be issuing a letter outlining the requirement to submit a Development Application (planning application). Unfortunately the screening constitutes development under the City's Planning Scheme No: 2 (DPS) and will require retrospective approval should you wish to retain it.
On 22 April 2020, the respondent wrote to the appellant to the same effect.
I infer that the appellant did not file an application for retrospective development approval, because by an email dated 19 May 2020, the respondent directed the appellant to remove the screen by 19 July 2020.
I find that the screen was erected in late 2010, and had therefore been present on the appellant's property for more than 9 years when the respondent first informed the appellant that she would require retrospective development approval for the screen if she wished to retain it.
Section 214 of the Planning Act relevantly provides:
(1)For the purposes of subsections (2) and (3) -
(a)a development is undertaken in contravention of a planning scheme or an interim development order if the development -
(i)is required to comply with the planning scheme or interim development order; and
(ii)is commenced, continued or carried out otherwise than in accordance with the planning scheme or interim development order or otherwise than in accordance with any condition imposed with respect to that development by the responsible authority pursuant to its powers under that planning scheme or interim development order;
(b)a development is undertaken in contravention of planning control area requirements if the development -
(i)is commenced, continued or carried out in a planning control area without the prior approval of that development obtained under section 116; or
(ii)is commenced, continued or carried out otherwise than in accordance with the approval referred to in subparagraph (i) or otherwise than in accordance with the conditions, if any, subject to which that approval is given.
…
(3)If a development has been undertaken in contravention of a planning scheme or interim development order or in contravention of planning control area requirements, the responsible authority may give a written direction to the owner or any other person who undertook the development -
(a)to remove, pull down, take up, or alter the development; and
(b)to restore the land as nearly as practicable to its condition immediately before the development started, to the satisfaction of the responsible authority.
…
(7)A person who -
(a)fails to comply with a direction given to the person under subsection (2); or
(b)fails to comply with a direction given to the person under subsection (3) or (5) within the time specified in the direction, or within any further time allowed by the responsible authority,
commits an offence.
The appellant submitted that, as she had an agreement with her neighbours pursuant to the Diving Fences Act 1961 (WA) regarding the erection of the screen, she either did not require development approval under the Planning Act or that agreement provided a good defence to the charge of failing to comply with the direction to remove it.
Both submissions are fundamentally flawed. If development approval is required under the Planning Act in respect of a proposed development, an agreement between adjoining owners under the Dividing Fences Act is not a substitute or alternative to obtaining that approval. The two statutes are concerned with different subject matters, it being clear that the legislature intended that the control of planning and development be governed by the Planning Act.
The appellant also submits, in effect, that the screen was not a structure and therefore did not require development approval. She also submitted that she was not a 'developer', with the consequence that the Planning Act did not apply to her.
It was open to the appellant to challenge the direction to remove the screen issued by the respondent. Section 255(1) of the Planning Act and s 17 of the State Administrative Tribunal Act 2004 (WA) confer a right to seek review of a direction to the Tribunal. The appellant failed to pursue that review, with the consequence that the direction issued to her was not challenged prior to her conviction.
I will assume, without deciding, that it was open to the defendant to raise a collateral challenge to the respondent's direction to remove the screen in the course of the prosecution,[18] and consequently upon appeal. As the point was not the subject of considered submissions and it is unnecessary to decide it in order to determine the appeal, I do not do so.
[18] As to which see Ballina Shire Council v Joblin [2022] NSWLEC 90 [46].

The term 'development' is defined by s 4 of the Planning Act to mean the development or use of any land, including any demolition, erection, construction, alteration of or addition to any building or structure on the land.
The term 'structure' is not defined by the Planning Act or the Interpretation Act 1984 (WA).
In SZTAL v Minister for Immigration and Border Protection,[19] the plurality set out the modern approach to statutory interpretation as follows:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
[19] SZTAL v Minister for Immigration and Border Protection [2017] HCA (2017); 262 CLR 362 [14].
The evident purpose of the Planning Act is to ensure that land is developed in accordance with proper planning principles, in a way which is both orderly and compatible with the public interest.[20]
[20] See R v City of Munno Para; Ex parte John Weeks Pty Ltd (1987) 46 SASR 400, 406.
The Macquarie Online Dictionary defines the word 'structure' to mean, relevantly, '1. mode of building, construction, or organisation; arrangement of parts, elements or constituents. 2. something built or constructed; a building, bridge, dam, framework, etc'. Similarly, the online version of the Oxford English Dictionary defines 'structure' to mean 'something constructed or having organisation', including 'II.6 Any framework or fabric of assembled material parts; a (typically large) man-made construction'.
Having regard to the use of the word 'building' in contradistinction to 'structure' in the statutory definition of the word 'development', the word 'structure' is to be given its natural and ordinary meaning, such that the construction of an edifice other than a building upon land constitutes 'development' for the purposes of the Planning Act.
That construction is supported by the reasoning of the Court of Appeal in Allmark v City of Stirling,[21] where the court held that a provision in a town planning scheme to the effect that the construction of a fence did not require development approval did not apply where the walls in question came within the scope of exclusions to that provision, it being implicit in the court's reasoning that the construction of a fence constituted development within the meaning of s 4 of the Planning Act.
[21] Allmark v City of Stirling [2013] WASC 122 [27] - [33].
The appellant therefore required development approval for the construction of the screen. There is no reason, in my view, to read down the ordinary meaning of the word 'structure' so as to exclude screens of the type at issue in this ease. There is an obvious public interest in there being planning controls over privacy screens, given the potential for a screen to impact upon views and amenity generally.
Further in this regard, the appellant's argument that she was not a 'developer' is without merit. Section 214(3) confers power upon a responsible authority to issue a notice to remove a development undertaken without development approval to the owner or any other person who undertook the development.
The appellant also placed reliance on the Building Act 2011 (WA) (Building Act). The Building Act regulates building and demolition work, including the grant of permits to carry on such work and standards for the construction of and demolition of building and incidental structures.
Section 3 of the Building Act defines 'building work' to mean, relevantly for present purposes, 'the construction, erection, assembly or placement of a building or an incidental structure'.
The term 'incidental structure' is defined by s 3 to mean a structure attached to or incidental to a building, including 'a chimney, mast, swimming pool, fence, free-standing wall, retaining wall or permanent protection structure'.
It is apparent from the definition that a fence or free-standing wall may constitute an incidental structure notwithstanding that it is not attached to a building.
The Building Act does not define the word 'structure'. There is nothing in the statute to indicate that word should be given anything other than its ordinary meaning, as in the Planning Act.
Subject to certain presently irrelevant exceptions, s 9 of the Building Act prohibits a person carrying out building work unless a building permit is in effect for that work[22] or a building permit is not required for that work under pt 5 of the Act, the regulations or an order identified in pt 5 div 1 of the Act.
[22] Section 9(a), Building Act.
Section 66 of the Building Act is to the effect that regulations may be made to the effect that a building permit is not required for building work specified in the regulations. Section 67 provides that the Minister may by order exempt certain works from specified provisions of the Act.
Item 4 in the table comprising cl 2 of sch 4 of the Building Regulations 2012 (WA) exempts the '[c]onstruction, erection, assembly or placement of a fence, screen or similar structure' from the requirement to obtain a building permit in respect of those works in certain specified circumstances, primarily being where the structure will be in accordance with a local law made under the Local Government Act 1995 (WA).
The Planning and Building Acts are therefore consistent in their operation, although they address different public policy concerns. A person wishing to erect a structure upon particular land will require both development approval under the Planning Act (unless the erection of that structure is exempted from that requirement by a written law) and a building permit to undertake the works involved in erecting the structure itself unless those works are exempted from the obligation to obtain a permit by a written law or Ministerial order, or the structure to be erected is, in some fashion not requiring consideration in the present proceedings, not incidental to any building erected on the land.
Although the appellant emphasised that s 133(2) of the Building Act limits the time in which a prosecution for carrying out building works without a permit may be commenced, that limitation is irrelevant in the present case. The appellant was not prosecuted for a breach of the Building Act, but for the failure to remove the screen after she had failed to apply for retrospective development approval and had been directed to remove it.
The provisions of the Building Act therefore had no application to the offence with which the appellant was charged.
Nor did the Limitation Act 2005 (WA), on which the appellant also relied, prevent the respondent prosecuting the appellant for failure to comply with the direction to remove the screen, for two reasons.
First, the Limitation Act has no application to criminal prosecutions, such as the one commenced against the appellant. The legislation provides for time limits for commencing civil proceedings and arbitrations.
Secondly, the appellant was not charged with having constructed the screen without development approval in 2010. She was charged with failing to comply with a direction given under s 214(3) of the Planning Act within the time specified in the direction. That offence was first committed on 20 July 2020, being the first day after the time specified for the appellant to remove the screen, but it continued each day thereafter.
The prosecution notice issued to the appellant specified that the period to which the charge related was 1 May 2021 to 1 September 2021. Accordingly, even if the appellant were correct in claiming that any prosecution was required to be issued within 6 years, that occurred in her case.
It is convenient to deal at this stage with the appellant's argument to the effect that the respondent had told her that she did not require development approval for the construction of the screen, which amounts to a submission that the respondent was estopped from requiring the appellant obtain retrospective development approval.
Ordinarily, an estoppel does not run against the exercise of a discretion reposed in the executive and regulated by statute,[23] especially where statutory rights are created for the benefit of the public. However, in Attorney-General (NSW) v Quin, Mason CJ recognised a limited exception to that principle, stating:
What I have just said does not deny the availability of estoppel against the Executive, arising from conduct amounting to a representation, when holding the Executive to its representation does not significantly hinder the exercise of the relevant discretion in the public interest. And, as the public interest necessarily comprehends an element of justice to the individual, one cannot exclude the possibility that the courts might in some situations grant relief on the basis that a refusal to hold the Executive to a representation by means of estoppel will occasion greater harm to the public interest by causing grave injustice to the individual who acted on the representation than any detriment to that interest that will arise from holding the Executive to its representation and thus narrowing the exercise of the discretion. (citations omitted)
[23] Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 17 - 18; Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 207 - 208.
As there recognised, in general a party may resile from a position it has previously adopted or communicated where it would not be unconscionable to do so. That will generally be so where the party which has relied on the first party's conduct will not suffer substantial detriment as a consequence of the change of position.
In this case, assuming for the sake of the argument that the appellant had been told by an officer of the respondent that she did not require development approval for the screen, the appellant was informed in April 2020 and again in May 2020 that she would either have to remove the screen or obtain retrospective development approval for its construction. When the appellant did not apply for that approval, the respondent allowed her a further two months in which to remove the screen.
When the appellant failed to do so, the respondent did not take steps to prosecute the appellant for more than a year.
I find that, in circumstances where the appellant had had the use of the screen for more than nine years, had been informed that she could apply to obtain retrospective development approval for the screen and had the right to challenge the direction issued by the respondent in the State Administrative Tribunal, it was not unconscionable for the respondent to resile from any representation it had previously made about whether the appellant required development approval in respect of the screen. That is particularly so when the appellant was ultimately allowed a substantial period of time in which to seek the requisite approval and there was no evidence as to the cost of either erecting or removing the screen.
Accordingly, I find that any representation which may have been made to the appellant in 2010 did not prevent the respondent prosecuting her in 2021 for failing to remove the screen.
Finally, the appellant raised a series of points to the effect that she was not properly served with notice of the prosecution and of the date on which the charge was to be heard.
At the hearing of her appeal, the appellant submitted that there had not been proper service of the prosecution notice. She argued that:
(a)the prosecution notice was required to be sealed by the Magistrates Court;
(b)the prosecution notice was required to be served 21 days before the first return date;
(c)the signature of the employee of the respondent issuing the notice was required to be witnessed;
(d)the documents she received (being the prosecution notice and the court hearing notice) were not in the prescribed form;
(e)those documents were not served by police;
(f)she did not receive a statement of material facts;
(g)she did not receive disclosure of confessional material.
Section 20(3)(a)(i) of the CPA provides that a prosecution for an offence may be commenced by an authorised person in relation to an offence. An authorised person is, relevantly, a person who is a public authority or an employee of a public authority.[24]
[24] Section 20(1)(b)(i), CPA.
The respondent is a public authority for the purposes of the CPA.[25]
[25] By virtue of paragraph (c) of the definition of 'public authority' in s 3, CPA.
A prosecution is commenced by lodging a prosecution notice, signed in accordance with s 23 of the CPA. Section 23(2)(d) requires that the prosecution notice be signed by the person who is commencing the prosecution.
Section 23(1) of the CPA provides that sch 1 to the CPA has effect in relation to prosecution notices and charges in them.
Clause 3(1) of sch 1 requires that a prosecution notice identify the prosecutor. Clause 3(2) provides that, where a prosecution is being commenced by (relevantly) an employee of a public authority acting in the course of his or her duties, it is sufficient to name the public authority as the prosecutor if the individual who issues the notice is identified in the notice and it is signed in accordance with s 23 of the Act.
Consistent with cl 3(2), the prescribed form of a prosecution notice provides separately for the names of the 'prosecutor' and the 'person issuing this notice' to be inserted.[26]
[26] Rule 8(1) and sch 1 form 3, Criminal Procedure Regulations 2005 (WA).
The prescribed form does not provide for the signature of the person issuing the notice to be witnessed. To the contrary, s 28(5) of the CPA provides that the justice of the peace, prescribed court officer or magistrate who issues a court hearing notice in relation to a prosecution notice need not have been present when the prosecution notice was signed.
The prosecution notice issued to the appellant was reproduced in the text of the appellant's affidavit sworn 27 August 2024. The notice is stated to have been issued on 21 September 2021.
The prosecution notice identified the respondent as the prosecutor and an employee of the respondent, together with his position with the respondent, as required, and was signed on behalf of the respondent.
I adopt Vandongen J's analysis in Kelly v Fiander,[27] without repeating it here, as to how the requirement that a prosecution notice be signed is met where the notice is lodged electronically with the Magistrates Court, as was evidently done in this case.[28]
[27] Kelly v Fiander [2023] WASC 187[77] - [88].
[28] Regulation 45(1) of the Magistrates Court (General) Rules 2005 (WA) requires a prosecution notice be lodged electronically with the Court, except in certain limited circumstances.
The appellant was unable to identify the source of the requirement that a prosecution notice be sealed by the Magistrates Court which she claimed had not been satisfied. There is nothing in the CPA to suggest that a prosecution notice must be sealed by the court. While both the Magistrates Court Act 2004 (WA)[29] and the Magistrates Court (General) Rules 2005 (WA)[30] make provision for the Court's seal, I have been unable to identify any requirement that a prosecution notice must be sealed as the appellant asserts.
[29] Section 4, Magistrates Court Act 2004 (WA).
[30] Rule 4(1), Magistrates Court (General) Rules 2005 (WA).
The prosecution notice was accordingly validly issued.
As for service, s 28(4) of the CPA provides that if an offender is not in custody, and the offence alleged is a simple offence, the prosecutor must issue a court hearing notice.
Section 3 of the CPA defines the term 'prosecutor' to mean the person who commenced the prosecution or a person who in court represents that person.
Section 4 of the Planning Act provides that the local government responsible for the enforcement of the observance of a local planning scheme or local interim development order is the responsible authority for the purposes of the Act.
It is convenient to deal at this stage with a contention repeated by the appellant in the course of the proceedings, relying upon Tey v Plotz,[31] that the proper respondent to these proceedings was the employee of the respondent who authorised the issue of the prosecution notice.
[31] Tey v Plotz [2010] WASC 163.
Tey v Plotz does not support that contention. In that case, Jenkins J held that the 'WA Police' is not a person, corporation, statutory body or corporation sole, and consequently was 'not a body known to the law other than as a 'sufficient' name of a prosecutor as provided for in the Criminal Procedure Act sch 1'. In particular, her Honour held that 'WA Police' was not a public authority as that term is defined in the CPA.[32]
[32] Tey v Plotz [15].
Her Honour accordingly held that 'WA Police' was not the proper respondent to an appeal from a Magistrates Court prosecution.
Her Honour's reasoning has no application to the present circumstances, because, as already explained, a local government is a public authority and public authorities may commence prosecutions. Even if that were not the case, a local government is a body corporate with perpetual succession and a common seal,[33] and therefore a legal person. Consistent with that status, proceedings may be taken by or against a local government in its corporate name.[34]
[33] Section 2.5, Local Government Act 1995 (WA).
[34] Section 2.6, Local Government Act 1995 (WA).
The respondent was therefore correctly named as the prosecutor in the prosecution notice and as the respondent to the present appeal.
Section 28(4)(a)(i) of the CPA provides that a justice of the peace can issue a court hearing notice where the prosecution notice alleges a simple offence, as was the case here. The court hearing notice must form part of or be securely attached to the prosecution notice,[35] and be signed by the authorised investigator.[36]
[35] Section 33(1)(b), CPA.
[36] Section 33(1)(g)(i), CPA.
The term 'authorised investigator' is defined by s 18(c) of the CPA to mean an officer of a prescribed public authority authorised to commence prosecutions.
The term 'prescribed public authority' is defined by s 18 of the CPA to mean an authority prescribed by the regulations.
Each local government is a prescribed public authority by reason of reg 7A(aa) of the Criminal Procedure Regulations 2005 (WA).
A prosecution notice which purports to have been signed by an authorised investigator is taken to be signed by that person unless the contrary is proved.[37]
[37] Section 174, CPA.
A court hearing notice can be served by post, pursuant to s 33(3) of the CPA and cl 3 of sch 2 to that Act. Personal service is not required.
Where the court hearing notice is served by post, cl 3(3) of sch 2 to the CPA requires that the notice be posted at least 14 days before the court date stated in the notice.
In the instant case, that meant that the notice was required to be posted on or before 22 October 2021.
A copy of the court hearing notice was reproduced in the appellant's affidavit sworn 2 October 2024. The document shows it to have been issued by a justice of the peace on 22 September 2021 and posted on 13 October 2021, 23 days before the date on which the matter was to be heard.
The appellant received the prosecution and court hearing notices on 29 October 2021, being seven days prior to the court date nominated in the notice.

There is no requirement that an accused receive a court hearing notice at some specified time prior to the time and date specified in the court hearing notice. The statutory requirement, where the court hearing notice is to be served by post, is only that it be posted at least 14 days prior to the hearing date.
That was done in the appellant's case. Although the appellant complains of having received insufficient notice of the hearing date, I find that she was duly served in accordance with the provisions of the CPA.
The appellant's submissions to the effect that she was not properly served and that she was given insufficient notice of the hearing therefore have no prospects of success.
The appellant also submitted that she was not issued with an infringement notice in relation to the offence, as she asserts should have occurred.
The issue of infringement notices is governed by s 5(1) of the CPA, which provides that regulations made under a prescribed Act may prescribe an offence for which an infringement notice may be issued.
The Planning Act is not a prescribed Act.[38] There is accordingly no power to issue an infringement notice in respect of an offence created by the Planning Act. The submission is therefore without merit.
[38] Section 4, CPA, read with r 6A and sch 1A, Criminal Procedure Regulations 2005 (WA).
The appellant also submitted that she had not been properly served because she did not receive a statement of material facts or notice of confessional material with the prosecution notice.
Initial disclosure by the prosecution in respect of offences is addressed in s 35 of the CPA. The obligation to make disclosure differs according to whether the offence charged is an indictable or a simple offence. A simple offence is not an indictable offence.[39] An indictable offence is defined in the CPA[40] to mean a crime or any other offence described by a written law as an indictable offence, irrespective of whether in some circumstances it may be dealt with summarily.
[39] Section 3, CPA.
[40] Section 3, CPA.
The offence created by s 214(7) of the Planning Act is therefore not an indictable offence.
Regulation 10 of the Criminal Procedure Regulations 2005 (WA) provides that the offences listed in sch 3 to those regulations are prescribed simple offences. There are five in total. The offence with which the appellant was charged is not one of them.
The prosecutor is obliged, where the offence charged is an indicatable offence[41] or a prescribed simple offence,[42] to serve a written statement of material facts together with notice of the existence or otherwise of any confessional material of the accused in relation to each such charge, either with the prosecution notice or as soon as practicable thereafter.
[41] Section 35(4), CPA.
[42] Section 35(5), CPA.
There is no such obligation where the offence charged is a simple offence. Accordingly, there is no merit in the appellant's submissions to the effect that she was not properly served because she did not receive a statement of material facts or notice of confessional material.
As none of the matters raised by the appellant have a reasonable prospect of success, the proposed grounds of appeal have no merit and no miscarriage of justice arises from refusing the appellant an extension of time in which to appeal the 2021 conviction.
The extension of time required by the appellant to appeal the 2021 conviction is therefore refused, with the consequence that the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
25 FEBRUARY 2025