The WA Supreme Court recently handed down its decision in the
appeal matter of Uxcel Pty Ltd v City of Bayswater  WASC 5,
reducing the fine for a large, unauthorised temporary advertising
hoarding on vacant land from $50,000 to $5,000.
The City was notified on 5 May 2011 that a real estate agent
wished to erect a temporary sign on a vacant lot in Morley. When
its officers inspected the site, they found that the 3.6m by 2.4m
sign, advertising the successful sale of vacant land, had already
A letter was therefore sent to the agent advising that the sign
required planning approval, that approval had not been given and
that it should be removed. Further requests were made until the
sign was eventually removed 79 days later.
The Magistrates' Court
At first instance the agent was fined $50,000 (no daily
penalties) plus costs of $1476.45. As a company, the maximum
applicable penalty was $1m with a maximum daily penalty of
$125,000. The fine therefore represented 5% of the maximum (not
including the potential daily penalties).
The appeal submitted that the Magistrate had made an error of
She did not specify which part of the sentence was a daily
She did not adequately explain the factual basis for the
The sentence was "manifestly
Failure to specify daily penalty"
It was held that the $50,000 fine was a "head
penalty", that no daily penalties were imposed, and that this
course of action was open to the Magistrate.
The seriousness of the offence had to be assessed in the light
of the respondent's submissions and the appellant's plea in
mitigation. The Magistrate did not state any overall view as to the
seriousness of the appellant's offence in that context and so
it was found to be inadequate.
Although the sign was large and prominently positioned, it was
easily removed and, compared with contraventions seen in other
cases, relatively insignificant in terms of size and impact.
Taking into account the lack of previous offences, as well as
its work in the community, the $50,000 fine was found to be
manifestly excessive, despite the agents accepting that there had
previously been numerous requests to remove the sign.
The $50,000 fine was reduced to $5,000 with an order for the
City to pay the costs of the appeal (the Appellant remained liable
for the costs of the prosecution in the Magistrates'
The City was nevertheless granted a certificate under the
Suitors' Fund allowing it to recoup the costs of the
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).