The Supreme Court has recently resolved an issue concerning the
limitation period for prosecuting offences under the Planning and
Development Act 2005.
In Mocilac v City of Fremantle  WASC 56
("Mocilac"), in which Kott Gunning appeared for the
successful Respondent council the court held that:
The prosecution does not have to prove the alleged date of the
offence which appears on the prosecution notice; and
Planning offences are continuous even where the offence relates
to a built development.
There had been uncertainty about whether the limitation period
(in planning offences 12 months) runs from the date of
discovery of an unauthorised structure (for example) or
the date of the completion of the construction of the
This had the effect of deterring prosecutions simply because the
Local Government concerned could not precisely identify the date on
which a certain development had been completed. Some prosecutions
failed because the developments were found to have been completed
more than twelve months prior to the stated offence date.
His Honour Commissioner Sleight in Mocilac said that by
requiring a prosecution within 12 months of the date on which the
offence was allegedly committed, Parliament aimed to prevent
tardiness on the part of prosecutors but did not intend to make the
date of the offence an essential element. It followed that the
general principle applied, namely that the prosecution need not
prove the actual date of the offence.
This essentially means that the prosecution will no longer have
to prove that the unauthorised development was actually
being constructed or placed on the land as at the
date of the alleged offence on the prosecution notice (which is
usually the date that the local government discovered the offence
had been committed), as long as it had been built on the land by
His Honour went on to hold that since the word
"development" included "use", a person would
commit an offence by the continued use of the land on which the
unauthorised structure was present.
This means that built developments (and we consider that would
apply to fill as well as buildings) can now be treated as creating
continuous offences, as the offence is the use of the land for the
placement of that building (or fill).
The ruling creates greater certainty for local governments who
are not sure when a particular development has been undertaken but
who nevertheless intend to prosecute for an offence under the
Planning and Development Act 2005.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
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