Fine Halved to $90,000: A Careless, Not Flagrant, Planning Breach Did Not Warrant a $182,000 Penalty

In Anstee Earthmoving Pty Ltd v City of Busselton [2026] WASC 439, the Supreme Court of Western Australia (Whitby J) dealt with a company's appeal against a $182,000 fine imposed by a magistrate. The company had pleaded guilty to using rural land without planning approval, by storing large stockpiles of building waste, some of which contained asbestos. The result was that leave to appeal was granted, the appeal was allowed, and the company was resentenced to a fine of $90,000 (Orders 1–5; [66]–[68]). The important point is that, even with a maximum penalty of $1 million for a company and a strong emphasis on deterrence, a fine must reflect where the offending sits on the scale. Offending involving "at its highest … a lack of care", with an early plea, no priors and remediation, was not in the same league as flagrant, long-running breaches ([60], [66]). The Court also rejected a "mathematical" approach of scaling up old fines to match today's higher maximum ([64]). All paragraph references below are to the judgment.

Why it matters: Planning offences are prosecuted by local councils across Australia, and businesses are often the defendants. This case shows how appeal courts test a fine for "manifest excess": against the maximum, comparable cases, the seriousness of the offence and the offender's circumstances. It also shows why comparable cases are a guide, not a formula.

At a glance

• Court: Supreme Court of Western Australia, single judge, on appeal from the Magistrates Court (Busselton)
• Area of law: Sentencing; planning and development offences; criminal appeals
• Decision type: Appeal against sentence (fine) after a plea of guilty, with leave required
• Outcome: Leave granted; appeal allowed; the $182,000 fine set aside and replaced with a $90,000 fine; the magistrate's $3,000 costs order left in place
• Standard applied: Manifest excess, meaning the sentence must be "unreasonable or plainly unjust" so that error is implied ([37]–[40])
• Costs: The parties are to confer about the costs of the appeal and, failing agreement, file opposing minutes within 14 days ([69])

🧩 Facts and Issues

Background

The company runs an earthmoving, demolition and wastewater business in Carbunup River, within the City of Busselton, from part of a leased rural property ([1]–[2]). An earlier approval allowed storage of natural materials there, but in 2022 the City told the company that storing building waste was not permitted ([6]–[8]).

In April and May 2024, after a tip-off and drone flights, City officers found six stockpiles of building waste about three metres high. The waste included timber, piping, glass, concrete, plasterboard and bricks, and 11 of 13 samples taken were later shown to contain asbestos ([9]–[12]). After speaking to officers, the director arranged a burn permit and the stockpiles were burned the next day, damaging the asbestos-containing material ([13]).

How the case got here

Of four charges originally laid, three were dismissed. The company pleaded guilty to one charge of unauthorised use of a rural property under s 218(b) of the Planning and Development Act 2005 (WA), covering 53 days from 1 April to 23 May 2024 ([14]). The magistrate gave a 20% discount for the early plea ([20]). She found the breach partly inadvertent and partly flagrant, largely reversible but aggravated by the release of airborne asbestos fibres, substantial in scale, and commercial ([22]–[26]). She treated general deterrence as paramount, noted that the company had no prior offences, and imposed a $182,000 fine plus $3,000 costs ([28]–[29]).

What each side argued

• The company (appellant): Compared with the fines in Austrend, Pavlinovich and Coote, the fine was manifestly excessive ([41]).
• The City (respondent): The fine was within range and "necessarily demanded" to achieve the sentencing objectives ([42]). It relied on older cases and argued that if their fines were scaled to today's maximum, the equivalent range would be $467,000 to $800,000, so this fine was three to four times lower ([43], [55]).
• Common ground: The facts and the magistrate's factors were not disputed. The contest was about sentencing standards and where this offence sat on the scale of seriousness ([44]).

The issues

• Was the $182,000 fine manifestly excessive?
• If so, what fine should be imposed?

⚖️ Applicable Law – Legislation, Rules and Principles

• Planning and Development Act 2005 (WA), s 218(b): the offence of unauthorised use of land ([3]).
• Planning and Development Act 2005 (WA), s 223: a maximum fine of $200,000, plus $25,000 per day for a continuing offence. Under Sentencing Act 1995 (WA), s 40(5) a company faces five times that, which is $1 million, plus up to $125,000 per day ([15]).
• The 2011 increase: the maximum was raised in 2011 from $50,000 for individuals ($250,000 for companies) ([16]). An increased maximum signals that sentences should increase ([17]).
• Sentencing Act 1995 (WA), s 9AA: the discount for a plea of guilty ([20]).
• Criminal Appeals Act 2004 (WA), ss 7–9, 14: a right of appeal from a court of summary jurisdiction; leave is required and will not be granted unless a ground has a reasonable prospect of success; an appeal may be dismissed if there was no substantial miscarriage of justice ([30]–[33], [35]).

📌 Authorities Relied On

• House v The King (1936) 55 CLR 499: an appeal court cannot substitute its own view merely because it would have sentenced differently ([34]).
• Dinsdale v The Queen (2000) 202 CLR 321: manifest excess can relate to the type or the size of a sentence, and the sentence must be unreasonable or plainly unjust ([37], [40]).
• Kabambi v The State of Western Australia [2019] WASCA 44 at [21] and Gaskell v The State of Western Australia [2018] WASCA 8: the threshold for manifest excess ([37]).
• Vagh v The State of Western Australia [2007] WASCA 17 at [47]: the factors for assessing manifest excess ([38]).
• ENW v The State of Western Australia [2021] WASCA 213 at [52]: comparable cases guide but do not fix a range ([39]).
• JKL v The State of Western Australia [2012] WASCA 215 at [98]: increased maximums signal higher sentences ([17]).
• Swan Bay Holdings Pty Ltd v City of Cockburn [2010] WASC 81 at [74]: planning controls depend on observance, backed by significant penalties ([56]).
• Able Lott Holdings Pty Ltd v City of Fremantle [2011] WASC 87 at [48]: penalties must not be an "acceptable operating expense" ([57]).
• Austrend Construction Pty Ltd v City of Swan [2017] WASC 67; Pavlinovich Bulk Transport Pty Ltd v Shire of Kalamunda [2011] WASC 234; Coote v Shire of Serpentine-Jarrahdale [2022] WASC 326: the comparable cases ([45]–[53], [60]–[63]).

🧠 Analysis

Issue

Was the fine so far outside what the circumstances justified that error must be inferred?

Rule

An appellant must show that the sentence is "unreasonable or plainly unjust". This is assessed against the maximum penalty, customary sentencing standards, the seriousness of the offence and the offender's circumstances. Comparable cases help with consistency but do not set a rigid range ([37]–[40]).

Application

Deterrence matters, especially for commercial offenders

Whitby J accepted that general and personal deterrence are the major considerations. Planning controls depend on "a pervasive culture of general observance", and penalties should not be something a company "might regard as an unfortunate, but acceptable, operating expense" ([56]–[57]).

The aggravating features were real

The offending was commercial: the company was conducting "an entirely different land use within a large commercial operation". Asbestos fibres were released into the air when the stockpiles were burned ([58]). That made this case more serious than Austrend in that respect ([61]).

But it was not flagrant

Unlike Austrend, where the offender carried on for 340 days after warnings, this offending was "at its highest, involving a lack of care, rather than flagrant at any time". The company was on notice of the breach only in the last few days of the 53-day period ([46], [60]). Pavlinovich involved a deliberate, large-scale, 169-day operation with significant impact on neighbours, which made it "significantly more serious" ([47]–[49], [62]). Coote was "significantly less serious", having no adverse impact on neighbours ([63]).

Mitigation counted

The company remediated the soil at its own expense, the offending was not in flagrant disregard of the law, it pleaded guilty at the earliest opportunity, and it had no prior offences of this kind ([59], [66]).

Comparable cases are a guide, not a calculator

The City's approach of converting older fines into percentages of the post-2011 maximum was rejected: "The mathematical exercise … is not how the exercise of the sentencing discretion ought be approached". Cases decided before the increase gave little useful guidance ([64]). The comparable cases "do not establish the range of a sound sentencing discretion", although consistency remains important ([65]).

The fine was manifestly excessive

Considering all the circumstances, the fine was manifestly excessive, as was apparent when compared with the maximum and in light of the lack of flagrancy, the early plea, the absence of priors, the minimal impact on neighbours and the remediation ([66]).

Conclusion

Leave was granted, the appeal was allowed, and a fine of $90,000 was imposed ([67]–[68]).

🏛️ Outcome, Orders and Costs

• Leave to appeal granted, and the appeal allowed (Orders 1–2).
• The magistrate's sentence set aside, and the company resentenced to a $90,000 fine (Orders 3, 5).
• The magistrate's order that the company pay the City's $3,000 costs was "not disturbed" (Order 4).
• Costs of the appeal: the parties are to confer and, if they cannot agree, file opposing minutes within 14 days ([69]).

🧭 Practical Lessons

• For self-represented litigants: A sentence appeal is not a second chance to argue for a lower number. You must show that the sentence was "unreasonable or plainly unjust", usually by comparing the offending with similar cases and explaining why yours is less serious ([37]–[40]).
• For self-represented litigants: An early guilty plea, cleaning up at your own cost and having no prior offences all genuinely count. Here they helped halve a fine ([59], [66]).
• For practitioners: Characterisation is everything. The difference between "lack of care" and "flagrant" disregard drove the outcome. Build the evidence on when the client was on notice ([60]).
• For practitioners: Do not rely on arithmetic scaling of pre-amendment fines. Courts treat comparables as qualitative guidance, especially where the maximum has changed ([64]–[65]).
• For councils and prosecutors: Aggravating features such as asbestos release and commercial gain will be recognised, but they do not convert careless offending into flagrant offending ([58], [61]).

🧠 Take-Home Lesson

• Deterrence justifies significant fines for commercial planning breaches, but the fine must still fit where the offending sits on the scale.
• Flagrancy, duration after notice, and impact on neighbours separate the six-figure cases from the rest.
• Old fines cannot simply be multiplied up to match a new maximum.

"Sentencing is a judgment, not a spreadsheet. A careless breach, promptly admitted and cleaned up, is not a flagrant one."

This digest is general information about a published judgment, not legal advice. For advice about your own situation, speak to a lawyer, Legal Aid or a community legal centre.