City of Swan v Bayblue Holdings Pty Ltd
[2015] WASCA 227
•18 NOVEMBER 2015
CITY OF SWAN -v- BAYBLUE HOLDINGS PTY LTD [2015] WASCA 227
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 227 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:218/2014 | 15 SEPTEMBER 2015 | |
| Coram: | BUSS JA MAZZA JA CORBOY J | 18/11/15 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Orders made by the primary judge set aside Charge amended Respondent sentenced to a fine of $17,500 with a daily fine of $100 | ||
| B | |||
| PDF Version |
| Parties: | CITY OF SWAN BAYBLUE HOLDINGS PTY LTD |
Catchwords: | Criminal law Contravention of planning legislation Appeal from decision quashing conviction Charge bad for duplicity Plea of guilty to amended charge |
Legislation: | Criminal Procedure Act 2004 (WA), s 23, s 132, s 178, cl 2(4) sch 1, cl 8 sch 1 Heritage and Planning Legislation Amendment Act 2011 (WA), s 10 Planning and Development Act 2005 (WA), s 4(1), s 214, s 218(c), s 223 Sentencing Act 1995 (WA), s 40(5) |
Case References: | Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39 Chen v City of Stirling [2014] WASC 183 Chong v The City of Mandurah [2013] WASC 470 Corica v Throssell [2012] WASC 393 Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37 G T Homes Pty Ltd v Shire of York [2010] WASC 312 Gardner v Caporn [2005] WASCA 153 Goddard v City of Stirling [2009] WASC 28 Green v The State of Western Australia [No 2] [2014] WASCA 53 Hartwood Logistics Pty Ltd v City of Swan [2015] WASC 261 Kwa v City of Stirling [2001] WASCA 370 Lafou Pty Ltd and Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87 Paolucci v Town of Cambridge [2013] WASC 50 Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234 Peat Resources of Australia Pty Ltd v Rodney William Brown, Chief Executive Officer, City of Cockburn [2002] WASCA 342 Steelmakers Pty Ltd v City of Swan [2014] WASC 449 Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 Teissier v City of Rockingham [2014] WASC 158 Uxcel Pty Ltd v City of Bayswater [2013] WASC 5 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CITY OF SWAN -v- BAYBLUE HOLDINGS PTY LTD [2015] WASCA 227 CORAM : BUSS JA
- MAZZA JA
CORBOY J
- Appellant
AND
BAYBLUE HOLDINGS PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : KENNETH MARTIN J
Citation : STEELMAKERS PTY LTD -v- CITY OF SWAN [2014] WASC 449
File No : SJA 1012 of 2014
Catchwords:
Criminal law - Contravention of planning legislation - Appeal from decision quashing conviction - Charge bad for duplicity - Plea of guilty to amended charge
Legislation:
Criminal Procedure Act 2004 (WA), s 23, s 132, s 178, cl 2(4) sch 1, cl 8 sch 1
Heritage and Planning Legislation Amendment Act 2011 (WA), s 10
Planning and Development Act 2005 (WA), s 4(1), s 214, s 218(c), s 223
Sentencing Act 1995 (WA), s 40(5)
Result:
Appeal allowed
Orders made by the primary judge set aside
Charge amended
Respondent sentenced to a fine of $17,500 with a daily fine of $100
Category: B
Representation:
Counsel:
Appellant : Mr D P Gillett
Respondent : Mr J C W Skinner
Solicitors:
Appellant : McLeods Barristers & Solicitors
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431
Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39
Chen v City of Stirling [2014] WASC 183
Chong v The City of Mandurah [2013] WASC 470
Corica v Throssell [2012] WASC 393
Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37
G T Homes Pty Ltd v Shire of York [2010] WASC 312
Gardner v Caporn [2005] WASCA 153
Goddard v City of Stirling [2009] WASC 28
Green v The State of Western Australia [No 2] [2014] WASCA 53
Hartwood Logistics Pty Ltd v City of Swan [2015] WASC 261
Kwa v City of Stirling [2001] WASCA 370
Lafou Pty Ltd and Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87
Paolucci v Town of Cambridge [2013] WASC 50
Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234
Peat Resources of Australia Pty Ltd v Rodney William Brown, Chief Executive Officer, City of Cockburn [2002] WASCA 342
Steelmakers Pty Ltd v City of Swan [2014] WASC 449
Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81
Teissier v City of Rockingham [2014] WASC 158
Uxcel Pty Ltd v City of Bayswater [2013] WASC 5
1 BUSS JA: On 30 January 2014, the respondent was convicted, on its pleas of guilty in the Magistrates Court before Magistrate Roth, on two charges in a prosecution notice signed on 22 November 2013.
2 The charges, as amended in the Magistrates Court, alleged:
(a) as to charge no 1, the respondent, between 23 November 2012 and 28 February 2013, at Lot 63, 23 Montgomery Way, Malaga (the Land), within the appellant's district, failed to comply with a direction given to it under s 214(3) of the Planning and Development Act 2005 (WA) (the PD Act), within 60 days of being given the direction, contrary to s 214(7) of the PD Act; and
(b) as to charge no 2, the respondent, between 30 May 2013 and 29 November 2013, at the Land, within the appellant's district, being a company which was served with a copy of a building order, failed without reasonable excuse to comply with the order, contrary to s 115 of the Building Act 2011 (WA).
3 The magistrate imposed fines as follows:
(a) as to charge no 1, a fine of $300,000 plus a daily penalty, for 97 days' non-compliance, of $500 a day, being a total penalty of $348,500; and
(b) as to charge no 2, a fine of $25,000.
4 The magistrate awarded the appellant costs of $1,207.70 against the respondent.
5 The respondent applied for leave to appeal to the Supreme Court against its conviction and sentence on charge no 1. It did not appeal against its conviction or sentence on charge no 2.
6 Kenneth Martin J (the primary judge) granted leave to appeal, allowed the appeal, set aside the judgment of conviction on charge no 1 and entered a judgment of acquittal on that charge. See Steelmakers Pty Ltd v City of Swan [2014] WASC 449.
7 The appellant then applied for leave to appeal to this court against the primary judge's decision.
The relevant provisions of s 214 of the PD Act
8 Section 214(3) and s 214(7) of the PD Act provide, relevantly:
(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 -
…
(b) fails to comply with a direction given to the person under subsection (3) … within the time specified in the direction, or within any further time allowed by the responsible authority,
commits an offence.
10 At all material times, the appellant has been a 'responsible authority' within s 214.
The relevant background facts and circumstances
11 Since early 2003, the respondent has been the owner of the Land.
12 Since late 2006, Steelmakers Pty Ltd (Steelmakers) has operated a steel fabrication business from a large warehouse and workshop (the Building) situated on the Land.
13 The Building was constructed on the Land before the respondent became the owner.
14 In late 2006, Steelmakers carried out building works on the Land. These works involved extending part of the existing roof line of the Building by 6 m and enclosing a portion of the canopy to form a secure storage area (the Enclosure). The Enclosure (including the 6 m extension to the roof line) was about 14.85 m long and about 14 m wide.
15 In September 2007, Steelmakers and the respondent sought retrospective planning and building approval from the appellant for the Enclosure and planning and building approval from the appellant for further proposed additions to the northern side of the Building (the Proposed Additions).
16 The appellant responded to the applications by noting that, in addition to the Enclosure, other alterations appeared to have been made to the eastern side of the Building without planning or building approval having been obtained (the Other Alterations).
17 The Other Alterations were carried out by a third party before the respondent became the owner of the Land. The respondent did not undertake, and was not involved in undertaking, the unlawful development comprising the building of the Other Alterations.
18 In May 2009, the appellant cancelled the applications made by Steelmakers and the respondent in September 2007.
19 Between 2007 and 18 July 2011, there was correspondence between the appellant and the respondent, and there were discussions between their representatives, in connection with retrospective planning approval and building approval for the Enclosure and planning and building approval for the Proposed Additions.
20 On 18 July 2011, the appellant served on the respondent a notice containing a direction under s 214(3) of the PD Act and a notice containing a building order under s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA). The direction under s 214(3) relates to charge no 1 and the building order under s 401 relates to charge no 2.
21 In the notice containing the direction under s 214(3) of the PD Act:
(a) The appellant stated in effect that the following development (the Development) had been undertaken on the Land without the planning approval of the appellant having been applied for and obtained, contrary to cl 8.2 of the City of Swan Local Planning Scheme No 17:
The extensions to the existing warehouse located on the western portion of the Land (Warehouse), being the structures on the eastern side of the Warehouse that are shown hachured on the plan annexed hereto as 'Annexure 1' (Extensions).
(b) The appellant directed the respondent to alter the Development by removing the Extensions and reinstating the Warehouse (as defined in the notice) so as to comply with the approved plans.
22 The plan annexed to the notice depicted two structures with hachuring. One comprised the Other Alterations carried out by the third party before the respondent became the owner of the Land. The other comprised the Enclosure built by Steelmakers after the respondent became the owner.
23 The respondent did not comply with the s 214(3) direction.
24 In November 2011, the respondent lodged an application for retrospective planning and building approval from the appellant for all existing unlawful development on the Land and an application for planning and building approval from the appellant for the Proposed Additions.
25 Correspondence between the appellant and the respondent, and discussions between their representatives, continued, and on 1 March 2013 the appellant granted retrospective planning and building approval for the Other Alterations and the Enclosure.
26 The prosecution notice signed on 22 November 2013 was lodged with the Magistrates Court on 12 December 2013.
The proceedings relating to Steelmakers
27 Contemporaneously with the lodgment of the prosecution notice against the respondent, the appellant signed and lodged with the Magistrates Court a prosecution notice containing one charge against Steelmakers.
28 The charge alleged that between 30 May 2013 and 29 November 2013 Steelmakers had 'carried out development [on the Land] which was required to comply with the City of Swan Local Planning Scheme No 17 and failed to comply with a condition imposed under the Scheme', contrary to s 218(c) of the PD Act. The infringement period alleged in the charge (that is, between 30 May 2013 and 29 November 2013) was well after the period when any relevant 'development' had been 'carried out' by Steelmakers on the Land.
29 The charge against Steelmakers and the charges against the respondent were dealt with together. Like the respondent, on 30 January 2014 Steelmakers was convicted, on its plea of guilty before Magistrate Roth, on the charge preferred against it.
30 The magistrate fined Steelmakers $300,000 plus a daily penalty of $500 a day. The total penalty was $388,000.
31 The magistrate awarded the appellant costs of $1,207.70 against Steelmakers.
32 Steelmakers applied for leave to appeal to the Supreme Court against sentence, but not against conviction. Its application was heard together with the respondent's application.
33 The primary judge granted Steelmakers leave to appeal, allowed the appeal, set aside the sentence imposed by the magistrate, and substituted a total penalty of $32,700, representing a fine of $15,000 plus a daily penalty of $100 a day for the period of 177 days between 30 May 2013 and 29 November 2013.
34 Neither Steelmakers nor the appellant has appealed against his Honour's decision.
No legal representation in the Magistrates Court
35 In the proceedings in the Magistrates Court neither the respondent nor Steelmakers had legal representation. Each was represented by a director, being Nicola Tana, in the case of the respondent, and Eric Birighitti, in the case of Steelmakers. Neither of them is a lawyer.
The primary judge's reasons
36 The primary judge granted leave to adduce additional evidence in the appeal before his Honour. Two affidavits, namely an affidavit of Mr Tana sworn 9 June 2014 and an affidavit of Mr Birighitti sworn 9 June 2014, were relied on by the respondent and Steelmakers. An affidavit of Richard Riley sworn 4 July 2014 was relied on by the appellant.
37 His Honour referred in detail to the decision of the State Administrative Tribunal, constituted by Senior Member Mr DR Parry, in Lafou Pty Ltd and Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87.
38 In Lafou, a house at 5 Victoria Avenue, Claremont was unlawfully demolished before the applicant purchased the site. The applicant did not undertake the demolition or cause it to be undertaken. After the applicant became the owner of the site, the respondent purported to give a direction to the applicant under s 214(3) of the PD Act. The direction purported to require the applicant to 'alter' the site by rebuilding the house as it was immediately before the demolition. The applicant sought review of this decision. The Tribunal held that:
(a) demolition may be considered a 'development', as defined in s 4(1) of the PD Act [21];
(b) the practical difficulties involved in remedying an unlawful development comprising demolition do not indicate a contrary intention to the application of the definition of 'development', including demolition, to that term in s 214(3) of the PD Act [28];
(c) a responsible authority is authorised under s 214(3) to order the rebuilding of a demolished structure [35];
(d) however, s 214(3) only empowers a responsible authority to give a direction to the owner who undertook the unlawful development or to another person who undertook the unlawful development [38]; and
(e) it follows from the requirement that 'the owner' undertook or is undertaking development that 'the owner', for the purposes of s 214(3), must be the person who was the owner of the site at the time the development was or is undertaken, and cannot extend to a subsequent owner [40].
39 In the present case, the primary judge's reasons for allowing the respondent's appeal against conviction were as follows:
With it now being established through the additional evidence adduced by leave on the appeal that the relevant entities who actually undertook the two unauthorised alterations works at the Malaga site were not [the respondent], a conviction against [the respondent], applying Lafou, cannot, in law, be sustained. Consequently, [the respondent's] ground 1 must be upheld. The consequence will be that the charge of infringement against s 214(3) by [the respondent] must be dismissed in circumstances I have assessed to be exceptional, as regards the setting aside of a plea of guilty [142].
The appellant's ground of appeal to this court
40 The appellant's sole ground of appeal to this court alleges in effect that the primary judge erred in finding that the respondent did not undertake the development comprising the Enclosure which was the subject of the direction given under s 214(3) of the PD Act. The ground further alleges that his Honour should have found that:
(a) the respondent did not undertake the development the subject of the Direction undertaken prior to the respondent becoming the owner of the land, namely the development identified as being located in the larger of the 2 cross-hatched areas shown on the plan attached to the Direction (applying the principle in Lafou Pty Ltd and Town of Claremont [2009] WASAT 187); but that
(b) the respondent did undertake the development the subject of the Direction undertaken after the respondent became the owner of the land, namely the development identified as being located in the smaller of the 2 cross-hatched areas shown on the plan attached to the Direction, on the basis the respondent was the owner of the land at the time the development was undertaken and the respondent was aware of and permitted or acquiesced to the development being undertaken [by Steelmakers].
41 On 15 March 2015, Mazza JA granted leave to appeal on this ground.
The respondent's concession in relation to the ground of appeal
42 The respondent conceded, in its written submissions and at the hearing of the appeal, that the appellant's ground of appeal should be upheld.
The respondent's concession should be accepted
43 I am satisfied that the respondent's concession was properly made and should be accepted.
44 The only reasonable inference open, on the unchallenged facts before the primary judge, was that:
(a) Steelmakers undertook the construction and completion of the Enclosure with the knowledge and consent of the respondent as the owner of the Land;
(b) the construction and completion of the Enclosure was 'a development … undertaken in contravention of a planning scheme', within s 214(3) of the PD Act; and
(c) the construction and completion of the Enclosure was 'undertaken', within s 214(3), by both Steelmakers and the respondent.
The course of proceedings at the hearing of the appeal before this court
45 At the hearing of the appeal before this court, the court raised with counsel for the appellant whether charge no 1 against the respondent, as formulated in the prosecution notice, was duplex.
46 By s 23, read with cl 2(4) of sch 1, of the Criminal Procedure Act 2004 (WA), a charge must allege one offence only, 'unless cl 8 of sch 1 or another written law permits otherwise'. In the present case, neither cl 8 nor another written law permitted otherwise for the purposes of cl 2(4).
47 Duplicity occurs where there is a single charge which on its face (patent duplicity) or on the evidence adduced or to be adduced at trial (latent duplicity) alleges or gives rise to more than one offence. See Green v The State of Western Australia [No 2] [2014] WASCA 53 [3] (McLure P).
48 There is no doubt that, on the additional evidence adduced before the primary judge and in the context of s 214(3) and s 214(7) of the PD Act, charge no 1 alleged two separate and distinct offences. The first was the offence of failing to comply with the appellant's direction in relation to the development comprising the Other Alterations which was undertaken by the third party before the respondent became the owner of the Land. The second was the offence of failing to comply with the appellant's direction in relation to the development comprising the Enclosure that was undertaken by both Steelmakers and the respondent. Although the s 214(3) direction was expressed as a single direction and was contained in one notice, the direction comprised in substance two directions. One related to the Other Alterations which were carried out by the third party before the respondent became the owner of the Land. The other related to the Extensions which were carried out by Steelmakers with the knowledge and consent of the respondent as the owner of the Land. The respondent did not comply with the direction which in substance related to the Other Alterations or the direction which in substance related to the Enclosure. The manner in which charge no 1 was formulated, and the manner in which the appellant presented its case in the Magistrates Court, subjected the respondent to the possibility (which eventuated in that court) of being convicted of two separate and distinct offences.
49 It is plain that, on the additional evidence adduced before the primary judge and in the context of s 214(3) and s 214(7) of the PD Act, the two separate and distinct offences embodied in charge no 1 were not, on any view, one composite activity or one criminal enterprise. See Gardner v Caporn [2005] WASCA 153.
50 Accordingly, charge no 1 was tainted by latent duplicity.
51 If the existence of the latent duplicity had become apparent in the Magistrates Court it would have been open to the magistrate, on his own initiative, or on the application of the prosecutor or the respondent, to have amended charge no 1 under s 132 of the Criminal Procedure Act to eliminate the duplicity. See also s 178 of the Criminal Procedure Act.
52 At the hearing of the appeal before this court, counsel for the appellant accepted, eventually and under the pressure of argument, that charge no 1 was duplex.
53 After a short adjournment, counsel for the appellant moved for leave to amend charge no 1 to allege that the respondent:
Between 23 November 2012 and 28 February 2013, within the district of the City of Swan, failed to comply with that part of a direction given to it under s 214(3) of the Planning and Development Act 2005 and dated 18 July 2011 requiring it to remove the development identified as being located in the smaller of the two hachured areas shown on the plan attached to the direction within 60 days of being given the direction, contrary to s 214(7) of the Planning and Development Act 2005.
54 Leave to amend was granted because the amended charge eliminated the latent duplicity, the respondent was not relevantly prejudiced by the amendment and counsel for the respondent did not oppose the amendment (appeal ts 16). The amended charge was put to the respondent and it entered a plea of guilty.
55 Counsel for the appellant and counsel for the respondent then made submissions in relation to sentence.
56 Counsel for the respondent submitted in his written submissions and at the hearing that the s 214(3) direction was invalid to the extent that it required the respondent to remove the Other Alterations. However, it is unnecessary to deal with the point because of the amendment made at the hearing to charge no 1 and the respondent's plea of guilty to the amended charge.
The orders made by this court at the hearing of the appeal
57 This court made the following orders at the hearing of the appeal:
1. The appeal be allowed.
2. The orders made by Kenneth Martin J on 2 December 2014 in relation to the respondent on charge 1 in the prosecution notice dated 22 November 2013 be set aside.
3. The judgment of conviction entered by the Magistrate in relation to charge 1 in the prosecution notice be set aside.
4. The appellant has leave to amend charge 1 in the prosecution notice by the addition of the particulars supplied orally by its counsel.
5. A judgment of conviction be entered on the respondent's plea of guilty to the amended charge 1.
6. The sentence imposed by the Magistrate on charge 1 be set aside.
7. The decision for the sentence on the amended charge 1 be reserved.
58 We said at the hearing that we would give reasons later for our decision to allow the appeal and grant leave to amend charge no 1. I have set out my reasons.
The sentencing of the respondent
59 I turn now to the sentence which should be imposed on the respondent.
60 Since 3 March 2011, when s 10 of the Heritage and Planning Legislation Amendment Act 2011 (WA) commenced, the maximum penalty for the offence created by s 214(7) of the PD Act, where a body corporate is the offender, has been a fine of $1,000,000 and a further fine of $125,000 for each day during which the offence continues. See s 223 of the PD Act read with s 40(5) of the Sentencing Act 1995 (WA).
61 The facts and circumstances of the respondent's relevant offending, and various mitigating features, are set out in the primary judge's reasons. His Honour's findings in relation to those facts, circumstances and features have not been challenged. It is unnecessary to repeat them.
62 I am satisfied, on the facts and in the circumstances, and after having regard to all relevant sentencing factors (including the mitigating features), that the sentence proposed by Corboy J is appropriate. The sentence is commensurate with the seriousness of the offence.
63 Accordingly, I would impose a fine of $17,500 plus a daily fine, for 97 days' non-compliance, of $100 a day, being a total penalty of $27,200.
64 MAZZA JA: On 15 September 2015, I joined with Buss JA and Corboy J in pronouncing the orders set out at [57] of Buss JA's reasons. I respectfully agree with those reasons, including as to the resentencing of the respondent. The respondent should be resentenced as proposed by Corboy J.
CORBOY J:
Summary
65 Bayblue Holdings Pty Ltd (Bayblue) was convicted in the Magistrates Court of an offence under the Planning and Development Act 2005 (WA) (PDA). On appeal, the conviction was quashed and a judgment of acquittal was entered. The City of Swan (the City) appealed from that decision.
66 At the hearing of the appeal, the court was unanimously of the view that the charge alleged against Bayblue had been bad for duplicity (a matter that had not been previously raised in the proceedings). The charge was amended by consent and Bayblue pleaded guilty to the amended charge. The court reserved its decision on the sentence to be imposed.
67 I would impose a fine of $17,500, with a daily penalty of $100, for the reasons that follow.
The background to the appeal
68 Bayblue is the owner of a property located in Malaga (the Property) on which a factory warehouse is situated. Steelmakers Pty Ltd leased the Property for the purpose of operating a steel fabrication business.
69 The factory warehouse had been altered by the addition of two structures. A previous owner of the Property had erected one of the structures (the Earlier Development). Steelmakers had erected the other structure after Bayblue had acquired the Property (the Later Development). That structure was erected without planning or building approval.
70 Steelmakers and Bayblue sought retrospective approval for the Later Development in about September 2007. The City subsequently advised that the Earlier Development had also been erected without building or planning approval.
71 The City issued notices to Bayblue pursuant to s 401 of the Local Government (Miscellaneous Provisions) Act 1960 (WA) (the s 401 Notice) and s 214(3) PDA (the s 214 Notice) on 18 July 2011. The s 401 Notice required Bayblue to remove the Earlier Development and the Later Development within 35 days of service of the notice. The s 214 Notice also required Bayblue to remove each structure within 60 days of service.
72 Bayblue did not comply with the notices. Rather, it continued to deal with the City over obtaining retrospective approval for the structures. Planning approvals were eventually granted on 1 March 2013.
73 Notwithstanding the approvals, in December 2013 the City caused prosecution notices to be issued and served on Bayblue and Steelmakers. Two charges were alleged against Bayblue:
(1) Between 30 May 2013 and 29 November 2013, within the district of the City of Swan, failed to comply with a direction given to it under s 214(3) of the Planning and Development Act 2005 within 60 days of being given the direction, contrary to s 214(7) of the Planning and Development Act 2005.
(2) Between 30 May 2013 and 29 November 2013, within the district of the City of Swan, being a company which was served with a copy of a building order, failed without reasonable excuse to comply with the order, contrary to s 115 of the Building Act 2011.
74 As against Steelmakers, it was alleged that, between 30 May 2013 and 29 November 2013, it had 'carried out development which was required to comply with the City of Swan Local Planning Scheme No 17 and failed to comply with a condition imposed under the Scheme, contrary to s 218(c) of the Planning and Development Act 2005'.
75 The charges were dealt with in the Magistrates Court on 30 January 2014. Bayblue and Steelmakers were each represented by a director. The charge alleging that Bayblue had contravened s 214(7) PDA was amended by consent so that the period of non-compliance with the s 214 Notice was altered to between 23 November 2012 and 28 February 2013.
76 Steelmakers and Bayblue pleaded guilty to the charges alleged against them. Steelmakers was fined $300,000, with total daily penalties of $88,000. Bayblue was fined $300,000, with total daily penalties of $48,500, for the offence against the PDA. It was also fined $25,000 for the offence against the Building Act.
77 Steelmakers applied for leave to appeal against sentence. Kenneth Martin J granted leave and allowed the appeal. His Honour imposed a fine of $15,000, together with a daily penalty of $100. The total penalty was $32,700.
78 Bayblue applied for leave to appeal from its conviction and sentence on the charge that it had contravened the PDA. It relied on the decision of the State Administrative Tribunal in Lafou Pty Ltd and Town of Claremont [2009] WASAT 187; (2009) 64 SR (WA) 87 to contend that a direction under s 214(3) PDA could only be given to an owner who had undertaken the subject development. Kenneth Martin J allowed the appeal on that ground.
The appeal
79 The City appealed from the decision of Kenneth Martin J. It accepted that Bayblue could not have been directed to remove the Earlier Development. However, it contended that Bayblue had, nevertheless, contravened s 214(7) PDA by failing to comply with the direction to remove the Later Development.
80 Bayblue accepted that it could have been directed to remove the Later Development and that it had failed to do so following service of the s 214 Notice. However, it argued that the charge alleged that it had not complied with the whole of the direction contained in the s 214 Notice; that the learned magistrate was not 'directed to and did not deal with the charge on the basis that [Bayblue] had failed to comply with only the valid part of the direction' and that the City could not maintain a case on appeal that was materially different from the case that it had presented in the Magistrates Court (respondent's amended submissions, pars 3 - 5).
The s 214 Notice, the charge and duplicity
81 Section 214 PDA provides, so far as is relevant, that:
(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 -
…
(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.
83 The s 214 Notice recited that 'the development described in Item 2 of the Schedule (Development) has been undertaken on the land'. Item 2 described the Development as '[t]he extensions to the existing warehouse located on the western portion of the Land (Warehouse), being the structures on the eastern side of the Warehouse that are shown hachured on the plan annexed hereto … (Extensions)'. The annexed plan depicted two structures that were delineated by hachuring.
84 The s 214 Notice further stated that '[p]ursuant to section 214(3) of the [PDA], the City hereby directs you to alter the Development as specified in Item 4 of the Schedule'. Item 4, which was headed 'Required Alterations', stated that '[t]he Extensions are required to be removed, and the Warehouse is to be reinstated so as to comply with the approved plans'.
85 Clause 2(4) of sch 1, div 2 to the Criminal Procedure Act 2004 (WA) (CPA) provides that a charge must allege one offence only, unless cl 8 or another written law permits otherwise. There is no written law that permits a charge made under the PDA to allege more than one offence.
86 A charge may allege more than one offence on the evidence that is adduced in the prosecution of the charge. The charge will, in that instance, be bad for latent duplicity (latent ambiguity). The charge is bad as it is possible for the accused to be convicted of one of a number of distinct offences: Green v The State of Western Australia [No 2] [2014] WASCA 53 [17] (McLure P).
87 Counsel for the City initially contended that the charge alleged against Bayblue was not duplicitous. It was argued that a failure to comply with any part of the direction given in the s 214 Notice constituted an offence under s 214(7) PDA and it did not matter that the City had lacked power to give a direction in relation to the Earlier Development. Bayblue had committed an offence, as alleged by the charge, by failing to remove the Later Development within the period specified in the notice.
88 With respect, that argument reflected a misunderstanding of the concept of duplicity as it applied to the facts of this prosecution. Section 214(3) is concerned with a particular development – a development that has been undertaken without planning approval. The section permits a local government to give a direction in relation to that development. In my view, directions to remove more than one unapproved development may be validly given in a single notice. However, the directions are necessarily separate as they relate to different developments. Where there are multiple unapproved developments, either a separate direction must be given for each development or a generic direction must be treated as applying separately to each development.
89 Section 214(7) creates an offence where there has been a failure to comply with a direction given under s 214(3). As the direction must concern a particular unapproved development, the failure that constitutes the offence must also only relate to that development. Consequently, where there are multiple unapproved developments that are the subject of a direction given under s 214(3), a failure to comply with the direction in respect of each development constitutes a separate offence. A charge that, on the evidence presented, discloses a failure to comply with directions given under s 214(3) in respect of more than one development alleges more than one offence and is bad for latent duplicity.
90 The facts of this prosecution well illustrate the rationale for the requirement that a charge only allege one offence. The direction given by the City required Bayblue to remove two structures - the Earlier Development and the Later Development - that were, together, defined in the s 214 Notice as the 'Extensions'. However, they were separate structures erected at different times by different persons. The charge, on its face, alleged a single failure by Bayblue to comply with the direction. However, the facts alleged by the City identified two failures to act in compliance with the direction. Each failure constituted a separate offence for the purpose of s 214(7). Further, as the City conceded, Bayblue had a good defence to the charge that it had contravened s 214(7) by failing to comply with the direction to remove the Earlier Development; as Bayblue conceded, it had no defence to the charge that it had failed to comply with the direction by not removing the Later Development. The charge, as alleged in the prosecution notice, raised more than one offence and exposed Bayblue to being convicted of one of two distinct offences, contrary to the requirements of cl 2(4) of sch 1, div 2 to the CPA. The City relied on multiple acts that were not close in time and which could not be regarded as 'one composite activity or one criminal enterprise': Green v SOWA [24] (McLure P).
The amended charge
91 The charge was amended by consent at the hearing of the appeal to allege that Bayblue:
Between 23 November 2012 and 28 February 2013, within the district of the City of Swan, failed to comply with that part of a direction given to it under s 214(3) of the Planning and Development Act 2005, and dated 18 July 2011, requiring it remove the development identified as being located in the smaller of the two hachured areas shown on the plan attached to the direction within 60 days of being given the direction, contrary to s 214(7) of the Planning and Development Act 2005.
92 As has been noted, Bayblue pleaded guilty to that charge.
The circumstances relevant to sentencing Bayblue
93 The parties were granted leave by Kenneth Martin J to adduce further evidence at the hearing of the appeal. Nicola Tana, the sole director of Bayblue; Eric Birighitti, a director of Steelmakers; and William Richard Riley, the Senior Development Compliance Officer for the City, made affidavits that were received in the hearing.
94 Kenneth Martin J made various findings regarding the circumstances in which the Earlier Development and the Later Development were undertaken and the dealings between Steelmakers, Bayblue and the City over the applications for retrospective planning approval in Steelmakers Pty Ltd v City of Swan [2014] WASC 449. The parties did not challenge those findings.
95 So far as is relevant to sentencing Bayblue, his Honour found that:
(a) the City received Bayblue's application for retrospective planning approval by 24 November 2011 (the s 214 Notice was issued on 18 July 2011) [67(b)];
(b) the City requested further information in relation to the application and correspondence was exchanged between Mr Birighitti and the City between, at least, February 2012 and February 2013 [67(c)];
(c) the City granted retrospective approval for both developments on 1 March 2013 [67(d)];
(d) the developments were 'relatively minor' [67(f)].
96 The planning approval issued by the City on 1 March 2013 was subject to conditions. Steelmakers was convicted of having failed to fulfil the conditions, contrary to s 218(c) PDA. That section provides that it is an offence for a person to commence, continue or carry out any development which is required to comply with a planning scheme other than in accordance with any condition imposed under the scheme with respect to the development, or otherwise fail to comply with any such condition.
97 Kenneth Martin J noted that Steelmakers was a first offender; that it had pleaded guilty at the first available opportunity and that it had complied with the stipulated conditions by the time that it had pleaded guilty to the charge. His Honour characterised the 'overall level of culpability of Steelmakers' to be 'on the relatively low side' [152].
Comparable sentences
98 The court has only considered an appeal against the penalties imposed for a contravention of s 214(7) and s 218(a) PDA on a few occasions: G T Homes Pty Ltd v Shire of York [2010] WASC 312; Corica v Throssell [2012] WASC 393; Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASC 431 and Hartwood Logistics Pty Ltd v City of Swan [2015] WASC 261 (in which the matter was remitted to the Magistrates Court without the appellant being resentenced).
99 In G T Homes, Hall J held that a fine of $25,000 was not manifestly excessive in circumstances where the appellant had been convicted of contravening s 218(a) PDA by failing to remove a large quantity of waste that had been dumped and stored on rural land. The waste posed a contamination risk. The appellant had pleaded guilty at the first reasonable opportunity and neither it nor its principal director had a prior record. However, the waste continued to be stored on the land as at the date on which the appellant was sentenced.
100 The appellant in Corica placed a large amount of fill on residential land without approval. He obtained retrospective planning approval but subsequently placed additional fill on the land. The magistrate considered that the fill adversely affected the amenity of a neighbouring property; that the appellant had been requested to remove the fill on a number of occasions; that the offence was at the 'upper end of the scale' and that there was 'very little' to mitigate the appellant's conduct [59]. The magistrate considered that the appropriate penalty was a fine of $25,000 and a daily fine of $500. However, his Honour reduced the penalties on account of the appellant's financial circumstances.
101 McKechnie J dismissed an appeal against sentence, holding that the fine was within 'the range of fines for what was a serious, sustained breach of planning laws' [62].
102 Hall J refused the appellant leave to appeal against sentence in Able Lott. The appellant had undertaken work on a unit development after building and planning approvals had expired. The appellant was convicted of breaches of the PDA and the Local Government (Miscellaneous Provisions) Act and unsuccessfully appealed against conviction and sentence: Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87; Able Lott Holdings Pty Ltd v City of Fremantle [2012] WASCA 39. The appellant subsequently undertook further work and was convicted of, among other things, failing to comply with a direction to stop and not recommence a development, contrary to s 214(7) PDA. The appellant was fined $75,000 and a daily penalty of $250 was also imposed.
103 Hall J refused leave to appeal against sentence, noting that the total penalty was 'a high one', but reflected the appellant's deliberate disregard of planning laws and the need for personal deterrence [77]. His Honour cited with approval the comments of Hasluck J in Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81:
Planning controls exist for the benefit of the community as a whole. Their efficacy depends not only upon formal enforcement but also upon a pervasive culture of general observance and respect for the underlying communal purpose. This requires that breaches of the law be underpinned by significant penalties in order to deter infringements [74].
104 His Honour also observed that, '[s]ubstantial deterrent penalties are appropriate where the development involves a commercial aspect to avoid any possibility that the risk of being prosecuted will be treated as merely a business cost' [73].
105 The court has considered appeals against sentences imposed for other contraventions of planning legislation in a number of cases: Kwa v City of Stirling [2001] WASCA 370; Peat Resources of Australia Pty Ltd v Rodney William Brown, Chief Executive Officer, City of Cockburn [2002] WASCA 342; Goddard v City of Stirling [2009] WASC 28; Dodd and Dodd Pty Ltd v Shire of Mundaring [2010] WASC 37; Swan Bay Holdings Pty Ltd v City of Cockburn; Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234; Uxcel Pty Ltd v City of Bayswater [2013] WASC 5; Paolucci v Town of Cambridge [2013] WASC 50; Chong v The City of Mandurah [2013] WASC 470; Teissier v City of Rockingham [2014] WASC 158 and Chen v City of Stirling [2014] WASC 183. I have reviewed those decisions in determining the penalty to be imposed on Bayblue. However, it should be noted that the maximum penalty for a breach of s 214(7) was significantly increased in 2011.
Sentence
106 A failure to comply with a direction given in relation to a development that had been undertaken without the required planning approval is a serious offence for the reasons noted by Hasluck J in Swan Bay Holdings. That is confirmed by the maximum penalties prescribed for the offence. The maximum penalty specified for an offence demonstrates Parliament's view of its gravity. That view must be taken into account in determining, in a particular case, the appropriate sentence. The fact that Parliament has increased the maximum penalty for an offence must also be taken into account. An increase in the maximum penalty is an indication that the sentences for an offence should be increased to reflect Parliament's revised view of the gravity of the offending.
107 It must, of course, be acknowledged that a retrospective application for planning approval was with the City during the period of non-compliance with the s 214 Notice specified in the charge. However, the initial application for retrospective approval was cancelled by the City on 25 May 2009 because of Bayblue's failure to provide information that had been requested by the City (affidavit of William Richard Riley, par 11). Mr Birighitti provided an explanation as to the steps taken by Steelmakers to provide the information sought by the City, but it appears that there were significant delays in obtaining the required information. A further application for retrospective planning approval was not submitted to the City until 24 November 2011 (Mr Riley's affidavit, par 15; affidavit of Eric Birighitti, par 15(u)). That was approximately 4 months after the s 214 Notice had been served and well outside the 60 day period specified for compliance. There then followed an exchange of correspondence and information between the City and Mr Birighitti regarding the applications for planning approval for the Earlier Development and the Later Development.
108 It is not possible to determine from the affidavits filed in the appeal whether the delay in approval being granted was attributable to fault on the part of Bayblue – although, Mr Tana acknowledged that there had been delays in providing information requested by the City (affidavit of Nicola Tana, par 10). It was apparent from the affidavits filed in the appeal that Bayblue had relied on Steelmakers to obtain retrospective planning approval and to deal with the City in respect of all matters arising out of the s 241 and s 401 Notices.
109 Bayblue has no prior criminal record for contravening planning legislation and it pleaded guilty at the first available opportunity. Mr Tana stated that Bayblue derived no commercial benefit from the unapproved developments (Mr Tana's affidavit, par 11). The City did not challenge that assertion.
110 I accept the observations of Hasluck J in Swan Bay Holdings and Hall J in Able Lott Holdings on the need to impose a sentence for breaches of planning legislation that reflects the seriousness of the offence and serves as a deterrent to others, particularly where the breach involves a development associated with the commercial use of land. The offences committed by Bayblue and Steelmakers were different in nature. However, I also accept that it is necessary that some proportionality be maintained between the fines imposed on each given the connection between their offending.
111 Finally, Bayblue was also convicted and fined for failing to comply with the direction given in the s 401 Notice to remove the Earlier Development and Later Development. It was not submitted that s 11 of the Sentencing Act applied – the evidence required to establish the offence under the PDA and the evidence necessary for the offence against the Building Act was different in that the charges relied on different notices given under different statutory provisions (reflecting different statutory purposes) and specifying different times for compliance. However, considerations of totality apply given that Bayblue has already been fined for failing to comply with a direction to remove the Earlier Development and the Later Development.
112 I would sentence Bayblue to a fine of $17,500, with a daily fine of $100. Consequently, the total penalty that I would impose is $27,200.
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