A recent case which discusses Commercial Vehicle Parking, Direction Notices and daily penalties pursuant to the Planning & Development 2005 (P&D Act) is Bransby v City of Wanneroo [No 2]  WASC 396.
Mr Bransby was convicted of breaching s.218(b) of the P&D Act for carrying out development – namely commercial vehicle parking and storage yard – without the prior approval of the City of Wanneroo.
Mr Bransby was also convicted of breaching s.214(7)(b) of the P&D Act for failing to comply with a direction notice, directing the removal of the commercial vehicles, and ceasing the use of the land as a storage yard by removing all unauthorised building materials and temporary fencing.
At first instance, the Magistrate made findings that a large truck, and various small vehicles including an excavator, bobcat, grey trailer and red trailer (with the excavator sitting on the grey trailer) were, beyond reasonable doubt, commercial vehicles. The vehicles were used by Mr Bransby in connection with his demolition business.
The Magistrate found the large truck to have been parked at Mr Bransby’s property for more than 1 hour per day from 24 April 2017 to 11 April 2018, and that Mr Bransby was carrying out a ‘development’ in the sense that he used his property for parking the large truck.
In relation to the small commercial vehicles, the Magistrate found that parking had occurred at the property for 4 days in relation to the bobcat, 5 days in relation to the excavator, and 3 days in relation to the grey trailer, and for each Sunday during the offence period.
A global fine of $37,500 and costs in the sum of $3,197.42 was imposed on Mr Bransby. The judgment records the penalty comprised a $20,000 fine for breach of s.218(b) and $17,500 for breach of s.214(7)(b), amounting to $50 per day (24 April 2017 to 11 April 2018) for each of the 350 days during which the offence was said to have continued. The Direction Notice having been issued on 10 February 2017.
Mrs Bransby was also convicted of breaching s.214(7)(b) of the P&D Act and fined $20,000, with no order as to costs. Mrs Bransby was not a party to the appeal.
The Appeal Court considered that the Magistrate’s reasons for decision were largely based on the photographic evidence taken by the City’s officers. There was photographic evidence depicting offending behaviour on 10 separate days over an approximate 16 month period.
In the Appeal Court’s view, if the number of specific days were a substantial majority of the overall number of days, then it may have been possible to infer that the vehicles were parked on the property on every day of the offence period. However, the Appeal Court was not persuaded, that based on the photographic evidence to hand, that it was open to infer beyond reasonable doubt that the large truck was parked on the property each and every day of the offence period or that the small commercial vehicles had indeed been parked on Sundays.
The Appeal Court recognised that it is not necessary to have photographic evidence or some type of other evidence for each and every day of an offence period. However, in this case more than the photographs taken on 10 days over the 16 month period was required. The Appeal Court commented that the City could have sent an officer every day to photograph the vehicle or keep a record, or could have obtained admissions from Mr Bransby under cross examination.
The Appeal Court found that although the offending demonstrated a degree of persistence, it did not amount to even one day per month, that there was no commercial benefit and was temporary in nature.
In the circumstances, and following a review of Mr Bransby’s personal circumstances, the Appeal Court set aside the penalty and imposed a new global penalty in the sum of $3,500. As Mrs Bransby did not participate in the appeal, her penalty remained unaltered.
The case has significant ramifications for local governments who may wish to seek daily penalties, as substantial evidence demonstrating the continuing offending is now likely to be required.
Although not considered in any detail in this case, the case provides a timely reminder to Local Governments to be mindful of the wording of their Directions Notices.
The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.