Appeal - Town planning - Unauthorised building alteration to suburban home - No application for building approval as required by Town Planning Scheme - Fine of $30,000 imposed - Appeal against fine - Need for deterrence - No errror shown by magistrate - Appeal dismissed

City of Stirling District Planning Scheme Number 2 (WA)

Local Government Miscellaneous Provisions Act 1960 (WA) s 374

1 EM HEENAN J: This is an appeal by leave from a decision of his Honour Magistrate Wheeler given in the Magistrates Court at Perth on 8 August 2008 which resulted in his Honour imposing a fine of $30,000 for an offence contrary to s 218A of the Planning and Development Act 2005 (WA) to which the appellant had pleaded guilty.

2 The circumstances are that Mr Goddard came before his Honour that day charged with two offences, one contrary to s 374(1)(b) of the Local Government Miscellaneous Provisions Act 1960 (WA), in failing to obtain a building licence for the construction of works on his home at 22 Saunders Street, North Beach. The penalty for that offence was $1,000. No appeal has been instituted from that conviction or penalty.

3 The offence with which I am presently dealing is that Mr Goddard in or about December 2007, again at 22 Saunders Street, North Beach within the district of the City of Stirling, caused a building to be developed on the land without the prior approval of the council of the City of Stirling under the City of Stirling District Planning Scheme Number 2 to commence development, hence contrary to the Scheme and which was an offence contrary to s 218A of the Planning and Development Act.

4 As I have said, the decision of his Honour after hearing submissions was to impose a fine of $30,000 and to order the payment of costs. Against that decision the present appeal has been brought on the following grounds: that the learned magistrate erred in fact and in law by determining the appellant's sentence by:

(a) failing to give due account to the appellant's early guilty plea;

(b) failing to give due account to the appellant's personal circumstances and specifically his lack of any prior record;

(c) giving insufficient weight to the fact that prior to the prosecution being commenced an approval of the extension/works had been granted by the City of Stirling;

(d) giving insufficient weight to the fact that the evidence before the Court that the extension/works complied with all relevant local government by-laws and the Town Planning Scheme adopted for the City of Stirling;

(e) giving insufficient weight to the fact that work had ceased upon the site immediately upon the complaint; and

(f) giving insufficient weight to the fact that the appellant did not derive any commercial gain by the breaching of the relevant Act and that thereby a sentence was imposed which was excessive.

5 In relation to those six particularised grounds of appeal, it is evident from his Honour's reasons for decision that his Honour did give attention to and take into account the early guilty plea, the lack of any prior record, the fact that work had ceased on the site immediately upon the complaint, and that no commercial gain had been directly obtained by the breach of the Act, so I am satisfied that those four of the six particulars are not made out.

6 I turn then to grounds (c) and (d), namely, giving insufficient weight to the fact that before the prosecution was commenced an approval of the extension had been granted by the City of Stirling; and giving insufficient weight to the fact that the evidence before the court showed that the extension complied with all relevant by-laws and the scheme.

7 I do not accept that the evidence before his Honour demonstrated either of those contentions, and in fact the submissions for the prosecution were that it did not, and it is evident that his Honour proceeded on the footing that it did not. The circumstances were that after the detection of the non-compliance and the intervention of the City of Stirling by its officers, work did cease immediately, and from then on the appellant took up a course of approaches and discussions with the officers of the City of Stirling, which eventually led to approval being granted for a construction not in all terms identical with the construction which had then been partially erected and in some respects materially different.

8 The position put to the learned magistrate by the prosecutor and not in any way refuted was, and I read from the transcript:

A development approval was given in relation to the submitted plans, but the subsequent inspection of the premises revealed the plans did not completely correlate with the works which had been carried out and, that there are ongoing difficulties with the city in being able to formalise the work which was done. At the present time, no building approval exists and it appears changes will need to be made to the constructed addition before the city would finally consider approving the works.

The city has been left with a fait accompli here. It is much harder to get these buildings down once they are up without approval.

10 It is obvious that his Honour accepted that that was the position and there is nothing in the evidence before me to show that that was wrong. It has been conceded on behalf of the respondent that negotiations are continuing with the City of Stirling and an application for retrospective approval has been submitted and is being actively considered by the City of Stirling and, sub silentio, that it seems probable that approval of some kind will eventually be granted but not quite as is sought or as constructed.

11 That being the case, I am not satisfied that the particular propositions contained in (1)(c) or (d) have been made out, or that there was any error in law or fact by the learned magistrate determining the case on the footing which he did. That still leaves the essential submission that the penalty of $30,000 is in all respects, having regard to the factors which are accepted, so manifestly excessive as to constitute an error.

12 It is well-established that if there is such a manifest disproportion between a penalty imposed and any penalty which might reasonably be regarded as being imposed in the circumstances, then that disproportion of itself constitutes error and may also connote some undisclosed or unmentioned error in the course of reasoning, and it is to that aspect of the matter which I now turn.

13 The proposition advanced by the appellant on this ground is essentially that Mr Goddard was a first offender, that he did not obtain any commercial gain from this activity, that he cooperated with the authorities once the breach was discovered, and that it seems probable that some modification of his construction acceptable to the City of Stirling will in the foreseeable future be reached which will allow the structure, substantially as it is erected, to remain.

14 I think it is proper to accept that all those propositions have support in the evidence and are implicit in the findings of the learned magistrate and should form the basis upon which any decision is reached to impose a penalty in this case.

15 Nevertheless, it is evident that the learned magistrate took the view that this was a flagrant breach of the obligations to submit plans for approval and to comply with the planning process of the local authority; that no credible explanation had been given for the failure to do so; and that that, therefore, suggested that Mr Goddard was motivated by a sense of self-interest and personal advantage, perhaps not of direct commercial result but potentially in the long run. His Honour clearly considered that this called for a substantial deterrent penalty.

16 I consider that the conclusions which his Honour reached and the fine which he imposed can only be explicable upon that basis and I treat that as the basis upon which the determination of this appeal should therefore be conducted. The question is whether any of those assumptions has been shown to be erroneous or wrong in fact or law.

17 From what I have already said of a review of the circumstances of the events, I see no basis for any conclusion that there has been any error of fact in relation to this sentencing. In relation to matters of law it is necessary to bear in mind constantly that sentencing is a matter of discretion, that no case is exactly similar, but that there is a desirability that there be a general proportionality and consistency in sentencing for offences of like kind.

18 This penalty of $30,000 is, I am satisfied, unusually high, but it is evident that it contains a substantial deterrent component. The value of the extensions proposed seems to have been agreed at a figure of $155,000. A penalty of 10% of the maximum of $50,000, that is $5,000 as submitted by counsel for the appellant, seems to me to be a small proportion of the overall capital cost and to be quite devoid of any deterrent component.

19 I turn then to the authorities to which attention has been given. In the written submissions for the appellant there is reference to a decision of McLure JA in Skipworth v State of Western Australia [2008] WASCA 64 which was a sentencing appeal dealing with multiple charges of fraud and forgery. The subject matter of that prosecution and the penalties has therefore nothing whatever to do with the case in hand, but I was referred to [10] of her Honour's reasons in which her Honour said:

In determining whether a sentence is manifestly excessive, the court has regard to inter alia the standards of sentencing customarily imposed for offences of the type in question.

20 I unhesitatingly accept her Honour's proposition. In further advance of the appellant's argument, counsel cited the decision of McKechnie J in Callan v City of Fremantle [2008] WASC 197, which was a prosecution under the Town Planning and Development Act for unauthorised use of land, and at [71] - [78] his Honour reviewed a number of cases in which penalties had been imposed for breaches of various provisions of planning law and concluded that in the particular case fines of $18,000 each, that is, a total of $36,000, of the two appellants, who appear to have been husband and wife and joint owners of the property in question, was manifestly excessive and was set aside, his Honour directing that he would hear submissions from the parties as to what an appropriate fine should be for any resentencing. I have not been provided with what the ultimate result in that respect.

21 In that process his Honour considered a number of cases, including Peat Resources of Australia v City of Cockburn [2002] WASCA 342, in which a fine of $50,000 together with a daily penalty amounting to a total of $72,400 was upheld on appeal for a very large-scale breach of planning provisions involving a big commercial activity. That was regarded as 20% of the maximum available for a corporate offender.

22 In the case of Kwa v City of Stirling [2001] WASCA 370, the penalty was a fine of $10,000, also upheld on appeal, for the use of land contrary to the provisions of the Town Planning Scheme by conducting a backpackers' hostel on the land where there had been previous convictions and a long history of unlawful use. In Basso Brusa v City of Wanneroo [2003] WASCA 103, a development approval had been given to build a shed for a sawmill and to use the site for storage of timber and logs, but instead a chainsaw was used and that involved 20 to 30 minutes of chainsaw operation in the storage area every day. In the result, individual offenders were each fined $10,000 and the corporate appellant fined $200,000. In Popelier v Haeren [2004] WASCA 13, there was a motor vehicle assembly and repair business being carried on in a residential zone and Wheeler JA imposed a fine of $5,000. It is apparent both from the facts of the particular cases which I have just examined and from the penalties involved that there is a great variation in penalties and in the elements of the particular offence. That is not surprising because a breach of a planning law such as contemplated by this Act can take a whole variety of shapes and forms.

23 It is suggested on behalf of Mr Goddard that this is not one of the most serious offences, that it does not involve the use of any noxious industry, or any major nuisance or any prohibited use of the land; it is just an unauthorised residential development in an area where residential development is permitted and where it is likely that some such development as this will eventually be tolerated.

24 I say 'tolerated' rather than 'approved' because the basis of the case before the learned magistrate and the findings of the learned magistrate suggest that this project would never have been approved in its original form, and that the approval which has been given has, to an extent, been influenced by the difficulties and impracticalities which would be associated by completing the partial demolition. Therefore to the extent that practical benefit has been derived from this breach there is an added element for deterrence in the penalty to be imposed.

25 It has been put to me on behalf of the respondent that anything less than the penalty involved would not, having regard to the commercial magnitude of the operation, have any deterrent effects and in particular that a 10% fine amounting to $5,000 suggested in argument by counsel for the appellant would virtually be insignificant. I do accept that a $5,000 penalty would be virtually insignificant.

26 The question is whether in all the circumstances the penalty which was imposed is manifestly excessive. I have already said that I consider it to be high. I would have expected perhaps a penalty in the range of $20,000 to $25,000 as being more consistent with the limited pattern which emerges from an examination of the authorities, but I do not consider that the fact that this figure is slightly higher than that shows such a degree of disproportion as to constitute an error justifying alteration of the penalty. I consider that the fine was high but not erroneous, and therefore the appeal will be dismissed.