Key takeaways

The decision in Happy Cruising Pty Ltd v Magistrates Court of Western Australia [2025] WASCA 106 confirms that specifying charged offence date periods are important for:

1. calculating penalties
2. defining the timeframe a development was undertaken for which a convicted entity is sentenced, and
3. preserving the government’s ability to prosecute for illegal development outside of those dates.

Determining offence dates in planning prosecutions

The first (and most important) step in determining the dates for an alleged planning offence is identifying when there is reliable evidence of the offence. This is crucial, especially if the accused pleads not guilty and the matter proceeds to trial, as the timing of the offence may be in issue.

While neighbours or complainants might report earlier activity in relation to a planning offence, the most reliable evidence typically comes from the first local government officer inspection. Relying on third-party evidence is fraught with danger as witnesses may change their statements as the trial approaches or simply refuse to testify.

In Australia, planning “uses” generally “follow the land”. This usually means that an unauthorised use can be a continuing offence for each day the planning use remains on the land without approval.

Happy Cruising Pty Ltd v Magistrates Court of Western Australia

This principle was applied in the recent case of Happy Cruising Pty Ltd v Magistrates Court of Western Australia [2025] WASCA 106.

In this case the appellant sought a determination from the Supreme Court of WA that, having been convicted (via a guilty plea) of the use (that is, development) of land between 6 September 2019 and 2 April 2020, the appellant could not be convicted of a second offence which related to the use of the land between 15 June 2021 and 14 October 2021.

The Supreme Court of WA held (at paragraphs 73 to 77) that:

“73 The conduct the subject of the first offence was very clearly not the same as the conduct the subject of the second offence. The first offence related to the appellant's use of the land between 6 September 2019 and 2 April 2020. The second offence related to the appellant's use of the land between 15 June 2021 and 14 October 2021. To state the obvious, the second offence related to a different, non-overlapping period. The fact that the unlawful use of the land on each occasion was of the same general nature does not mean that it was the same conduct. The dates were not immaterial, rather, they identified the relevant conduct that constituted the offence.

74 Furthermore, as the facts of each offence plainly demonstrate, the conduct on each occasion was materially different, not only because it occurred at a different time, but because the use of the land related to different vehicles, equipment and items that were stored on the land. Each offence arose from inspections conducted by City officers on different days. The photographs taken at those inspections were tendered to confirm the relevant use at the relevant times.

75 The appellant's submissions deprive the word 'use' of its ordinary meaning. The use of land between 6 September 2019 and 2 April 2020 is not in any meaningful sense the same conduct as the use of that land between 15 June 2021 and 14 October 2021. The unlawful use may be of the same character, but the conduct is different. To argue to the contrary produces absurd results. It would mean that an owner of land who is using that land for an unlawful purpose can only be prosecuted once, and having been so prosecuted can continue that unlawful use with impunity. This would defeat the evident purpose of s 218(b) to prevent, deter and punish the unlawful use of land.

76 The appellant's reliance, on cases where it has been held that there is a single continuing offence that can only be prosecuted once, is misplaced. Those cases arise where the offence is a failure to comply with a statutory notice or direction within a specified period of time. Plainly, in such cases there is only one failure, though it may be a continuing one. The present case is not of that nature. It does not involve a failure to comply with a notice, but the unlawful use of land. The fact that s 218(b) refers to it being an offence to 'continue' any development, means only that the offence may be committed by continuing with an existing development. It does not mean that the offence itself is a continuing offence such that a failure to comply with s 218(b) can only be prosecuted once.

77 The appellant seeks to draw support from the fact that an additional daily penalty can be imposed for an offence of this nature. This is said to acknowledge that the offence is a continuing one. The fact that it was open to the magistrate to impose a daily penalty for the first offence does not assist the appellant. Firstly, any such penalty could only relate to past conduct as at the date of sentencing, or in other words, a penalty could not be prospectively imposed for future conduct. Secondly, the imposition of a daily penalty is not mandatory, and no daily penalty was imposed for the first offence in any event.”

Importance of evidence at start and end of offence periods

It’s essential to have evidence showing the offence occurred both at the start and end of the charge period. It is also vital to remember that a prosecution does not charge prospectively. That is, if a prosecution notice is issued with a charge containing the words (or similar) “From (date) and continuing from that time, the Accused…” the charged continuing offence will cease continuing at the date of issue of the Prosecution Notice.

That does not mean that the illegal activity will automatically cease at the issuing of a Prosecution Notice. But it does mean that the alleged illegal activity, which the charge relates to, ceases at that time. So, any daily calculation of that offence continuing must cease at the issuing of the Prosecution Notice – and may have ceased earlier if the alleged illegal conduct ceased earlier.

Further information / assistance regarding the issues raised in this article are available from the authors, Anne Wood, Partner and Brenton Oakley, Special Counsel.