Able Lott Holdings Pty Ltd v. City Of Fremantle (2012) WASCA 39
The Able Lott case was heard by the Court of Appeal on 14 December 2011 with the decision handed down by Pullin JA on 23 February 2012.
While the case involved fines imposed under Section 223 of the Planning and Development Act 2005 prior to its amendment, the approach by the Magistrate at first instance, and by the Judges on the subsequent appeals, illustrates the principles which are likely to apply.
At the time of the offence, Section 223 of the Planning and Development Act 2005 provided a general penalty of a fine of $50,000 and a further fine of $5,000 for each day. As the developer was a body corporate, those sums were increased by five times, so that the maximum penalty was $250,000 and the maximum daily penalty was $25,000.
The Magistrates' Court imposed a fine of $100,000, (40% of the maximum). However, in relation to the daily penalty over a period of 162 days, the Magistrate applied a penalty of $500 (2% of the daily maximum).
The combined general and daily penalties (accrued over 162 days) amounted to a total penalty of $181,000. The developer considered that this was excessive and unsuccessfully appealed to Murray J of the Supreme Court.
The Court of Appeal was equally unsympathetic. Pullin JA, at paragraph 38 of his Judgment, said:
"...this is a case where the appellant was carrying out an inner city development involving a heritage building. The fact that the appellant proceeded in complete disregard of the lack of planning approval, lack of building licence and existence of the stop work notice, made this a case where appropriate punishment and personal and general deterrence were of great importance in fixing a sentence."
The amended Act now allows a maximum fine of $1m and a daily penalty of up to $125,000 for a body corporate.
The principles in Lott would suggest that for an equivalent corporate offence today, the company could expect a principal fine of $400,000 (40%) and a daily penalty of $2,500 (2%) or a further $405,000 amounting to $805,000 in total.
Bearing in mind that Able Lott felt aggrieved by a total fine of $181,000, how would they have reacted to a fine of $805,000? Fines of that magnitude for such an offence, at the top end of the scale, are now quite conceivable.
Of course, no single case is a clear guide as to how penalties will be imposed in other cases. At paragraph 35 of his Judgment, Pullin JA pointed out that even though decided cases may suggest some sort of range, that range did not produce a maximum which displaced the statutory maximum. Each case turned on its own particular facts and circumstances and sentencing ranges could provide only general guidance.
The Court of Appeal considered it open to the Magistrate to find, as he did, that this was a case of brazen offending, in the top half of the range of seriousness for this type of offence. It was open to the Magistrate to conclude, as he did, that the building was constructed without approval in the hope that the City of Fremantle would submit under pressure of a 'fait accompli'.
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