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31 August 2018

Supreme Court refuses appeal – substantial fine for planning breaches upheld

Karen Abey

Managing Associate

Simmons Wolfhagen successfully prosecuted a person on behalf of the Hobart City Council, for the illegal demolition of the heritage protected house at 55 Mount Stuart Road in Mount Stuart.  The fine of $225,000 which was imposed, was appealed on the basis that it was manifestly excessive.  The Supreme Court rejected the appeal.  The fine must now be paid along with the costs of the hearings in the Magistrates Court and of the appeal.

The house was demolished, along with structures on the property, and a number of heritage protected trees were also destroyed.  This was done without obtaining the necessary planning permit or approvals for building works.  No precautions to control asbestos were taken.

The fine of $225,000 is the most significant penalty that has been imposed for this type of prosecution in Tasmania.  $205,000 of the penalty was attributable to the breaches of planning, building and environmental laws, for which the Council is responsible.  A further $20,000 was imposed for breaches of licensing legislation, for which the Director of Building Control is responsible.

This is a very strong message from the Supreme Court that planning, building and environmental offences must be taken seriously.  It cannot be assumed that you can breach planning and building legislation, and get the approvals later.  You also should not assume that a fine which is imposed by the Courts is just the cost of doing business, to be factored into any commercial undertaking.

The Court will take into account matters including:

  • A plea of guilty may still mean that a substantial penalty will be imposed.
  • Deterrence will be an important factor in assessing the appropriate penalty.
  • Substantial deterrent penalties are appropriate where the development involves a commercial aspect.

In addition, there has been a significant penalty imposed by the Magistrates’ Court of Victoria for the demolition of a 159 year old, heritage protected pub known as the “Corkman Irish Pub”.  Collectively, fines of $540,000 were imposed on the company and two directors who were responsible for the demolition.  The Magistrate indicated that he would have sentenced the directors to a period of jail, if that option was available to him.  This is another example of the Courts taking this type of illegal conduct very seriously.

We commence approximately 30 prosecutions for councils each year.  We are expecting that the sentences imposed in the future for those prosecutions will be influenced by this Supreme Court decision.

Please contact us if you require any assistance with your obligations under planning, building and environmental legislation.

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