Dodd & Dodd Pty Ltd v Shire of Mundaring

[2011] WASCA 37

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Criminal Law
2. › Defences
3. › Honest claim of right
4. › Section 22 Criminal Code (WA)
5. › Whether honest claim of right defence available for offence of unlawful use of land
6. › Whether finding of lack of honest belief under s 24 equally fatal to s 22 defence
7. › Criminal Code (WA), s 22
1. Criminal Law
2. › Defences
3. › Honest and reasonable mistake of fact
4. › Section 24 Criminal Code (WA)
5. › Whether belief in existence of non-conforming use right was mistake of fact or mistake of law
6. › Whether belief was honest and reasonable
7. › Criminal Code (WA), s 24
1. Criminal Law
2. › Appeal
3. › Proviso
4. › No substantial miscarriage of justice
5. › Whether proviso applicable where magistrate made positive error of law regarding available defence
6. › Criminal Appeals Act 2004 (WA), s 14(2), s 18
1. Planning and Environment Law
2. › Town planning schemes
3. › Non-conforming use rights
4. › Whether use lawful under earlier scheme
5. › Whether registration on non-conforming use register creates or merely records rights
6. › Shire of Mundaring Town Planning Scheme No 3, cl 7.1, cl 7.8

Quick Take

Where a magistrate erroneously holds that s 22 of the Criminal Code (WA) does not apply to a charge, the proviso may be applied if the finding of lack of honest belief made in relation to the s 24 defence is equally fatal to the s 22 defence. Registration on a non-conforming use register under a town planning scheme records but does not create non-conforming use rights.