Able Lott Holdings Pty Ltd v. City Of Fremantle (2012)
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
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
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).