The WA Supreme Court recently handed down its decision in the appeal matter of Uxcel Pty Ltd v City of Bayswater [2013] WASC 5, reducing the fine for a large, unauthorised temporary advertising hoarding on vacant land from $50,000 to $5,000.

The Facts

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 been erected.

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

The appeal submitted that the Magistrate had made an error of law because:

  • She did not specify which part of the sentence was a daily penalty
  • She did not adequately explain the factual basis for the penalty
  • The sentence was "manifestly excessive."

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.

Inadequate Reasons

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.

Excessive Fine

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.

Outcome

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' Court).

The City was nevertheless granted a certificate under the Suitors' Fund allowing it to recoup the costs of the appeal.

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