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 unauthorised structure.
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 that date.
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.
A copy of Mocilac v City of Fremantle  WASC 56 is available from Kott Gunning or www.supremecourt.wa.gov.au
For further information please contact our Anne Wood or the Local Government Team on (08) 9321 3755 or firstname.lastname@example.org.
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