Significant penalty issued against individual and corporate accused for continued breaches of planning scheme

Russell Kennedy recently successfully prosecuted the occupier of land in Keilor East, for breaches of the Brimbank Planning Scheme in relation to the use of land for the purpose of a ‘Store’ without a planning permit.

The land was located partially in an Industrial 1 Zone and partially in a Public Use Zone, and was affected by a number of overlay controls under the scheme.

Council’s investigations revealed that the land was being used for the storage of goods, including vehicles, trailers, containers, skip bins, and other junk, without consent of the owner and without a planning permit. The occupier initially applied for a retrospective planning permit after Council’s investigations. Council refused the application but the occupier continued to use the land for storage.

The breach was first discovered by Council in 2021 and continued through to late 2023, with multiple warnings, infringement notices and the initiation of proceedings in the Magistrate’s Court.

An obstacle faced by Council in the early stages of the enforcement was the issue of who was actually carrying out the unlawful use. The occupier of the land was not the owner, or a tenant, but occupying the land without consent from the owner. An individual involved in the use was identified, but did not cooperate with Council. Council was unable to identify if the individual was operating in their individual capacity, or in their capacity as the director of one of the two companies who were the registered owners of vehicles on the illegally stored on the Land, or under a corporate entity.

To ensure that the occupier was unable to hide behind a corporate veil regarding this address, Council issued charges against five entities. The charged entities sought and received numerous adjournments of the proceedings, in an attempt to delay the hearing for as long as possible, with 7 adjournments over two years.

Last week the matter was finally heard as a contested hearing at the Sunshine Magistrates Court, with the corporate accused Company A and the individual as director of Company A pleading guilty.

Magistrate McNamara heard the details of the offending, and aggravating factors including the fact that the individual involved had previously been involved in similar offending at a different address as a director of Company B, and was making a profit from the offending as they were not paying any rent to the landowner.

In sentencing McNamara emphasised the importance of deterrence from further offending, recorded a conviction against the individual accused, and issued a $100,000.00 fine split between the two guilty parties on a 60/40 basis (individual to corporate accused), in addition to awarding Council’s costs on a full indemnity basis to the tune of $94,000 (split on the same basis).

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