Dodd and Dodd Pty Ltd v Shire of Mundaring

(2010) 199 A Crim R 83; [2010] WASC 37

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Criminal Law
2. › Defences
3. › Mistake of fact
4. › Distinction between mistake of fact and mistake of law
5. › Belief in non-conforming use right under town planning scheme
6. › Whether mistake as to legal entitlement to use land is mistake of fact or law
7. › Criminal Code (WA), s 24
1. Criminal Law
2. › Defences
3. › Honest claim of right
4. › Application to offences beyond property offences in Part VI of Criminal Code
5. › Whether honest claim of right available for town planning offences
6. › Whether error in excluding defence caused miscarriage of justice
7. › Criminal Code (WA), s 22
1. Criminal Law
2. › Sentencing
3. › Fines
4. › Town planning offences
5. › Whether fine manifestly excessive
6. › Relevance of prior convictions for identical offences
7. › Relevance of deliberate defiance of planning requirements
8. › Planning and Development Act 2005 (WA), ss 218(a), 223
1. Town Planning
2. › Non-conforming use rights
3. › Requirements for establishment
4. › Whether use lawful under earlier scheme
5. › Whether entry on register sufficient to establish right
6. › Town Planning Scheme No 3, cl 7.1

Quick Take

A belief that one has a non-conforming use right to use land in a particular way is a mistake of law, not a mistake of fact, because such a right can only arise in the manner provided by the town planning scheme. Even if erroneous advice from council officers induced the belief, this cannot convert a mistake of law into a mistake of fact. Section 22 of the Criminal Code (WA) (honest claim of right) applies to town planning offences, but a mistaken belief as to legal entitlement is not an honest claim of right — it is ignorance of the law. For sentencing, fines for repeat town planning offences must be sufficient to ensure they are not treated merely as an operating expense.