Allmark v City of Stirling
[2013] WASCA 122
•17 MAY 2013
ALLMARK -v- CITY OF STIRLING [2013] WASCA 122
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 122 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:260/2012 | 18 APRIL 2013 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 17/05/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | SALLY ALLMARK CITY OF STIRLING |
Catchwords: | Criminal law Application for leave to appeal against conviction Failure to comply with conditions of planning approval Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 9, s 18 Planning and Development Act 2005 (WA), s 218, s 252 |
Case References: | Australian Crime Commission v Marrapodi [2012] WASCA 103 DPJB v The State of Western Australia [2010] WASCA 12 Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALLMARK -v- CITY OF STIRLING [2013] WASCA 122 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
CITY OF STIRLING
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HALL J
Citation : ALLMARK -v- CITY OF STIRLING [2012] WASC 394
File No : SJA 1101 of 2011
(Page 2)
Catchwords:
Criminal law - Application for leave to appeal against conviction - Failure to comply with conditions of planning approval - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 18
Planning and Development Act 2005 (WA), s 218, s 252
Result:
Application for leave to appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : No appearance
Solicitors:
Appellant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):
Australian Crime Commission v Marrapodi [2012] WASCA 103
DPJB v The State of Western Australia [2010] WASCA 12
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597
(Page 3)
1 McLURE P: This is an application for leave to appeal from the decision of Hall J refusing leave to appeal against the appellant's conviction for contravening s 218 of the Planning and Development Act 2005 (WA) (the Act).
2 The particulars of the offence are that the appellant, between 20 October 2009 and 10 February 2010, on Lot 1, 4 Wellington Parade, Yokine within the district of the City of Stirling, failed to comply with conditions imposed with respect to a development required to comply with the City of Stirling District Planning Scheme No 2 (the Planning Scheme).
3 The background is detailed in the reasons of Hall J. In summary, the facts are as follows. The appellant, who pleaded not guilty, represented herself in the Magistrates Court. The magistrate explained the nature of the proceedings and the appellant's obligation to put her case to witnesses called by the prosecution. The appellant said she understood but that she did not intend to say anything. The magistrate informed the appellant that if the prosecution evidence was uncontested there was a risk she would be convicted. The appellant said she understood.
4 The prosecution called two witnesses, an adjoining neighbour, Ms Rebecca Mapleson (the neighbour), and Ms Lara Bloxham, a City of Stirling Compliance Officer (the Officer).
5 Their unchallenged evidence was to the following effect. The appellant is the owner of the house in Wellington Parade, Yokine, construction of which commenced in late 2007. Along part of the rear boundary a dividing wall was constructed for which planning approval was not obtained (the dividing wall).
6 The neighbour agreed to the dividing wall being built on condition that it did not exceed 1.8 m in height. The wall was in fact constructed to approximately 2.1 m. The neighbour's request for the wall to be reduced to 1.8 m was refused. She then complained to the City of Stirling (the City).
7 On 5 June 2008 an application for approval of the already constructed dividing wall was submitted to the City (the Application). The Application was signed by the appellant. Attached to the Application was a letter from the appellant's husband justifying the height of the wall on privacy and security grounds.
(Page 4)
8 The Council of the City had the power to approve unauthorised existing developments under the then applicable provision of the Planning Scheme.
9 Dividing fences and walls require approval unless they come within exemptions provided for in sch 17 of the Planning Scheme. The dividing wall did not fall within an exemption.
10 Approval was also required in respect of a wall at the front of the property (the front wall). That wall abutted a right of way but did not include a necessary visual truncation. For that reason it too fell outside the exemptions in sch 17 of the Planning Scheme.
11 The Council of the City resolved to approve the Application subject to a number of conditions. A written notice of approval dated 16 February 2009 was addressed to the appellant as owner. One of the conditions specified that the height of the dividing wall and the front wall was to be no higher than 1.8 m above ground level. Another condition was that the surface finish of the dividing wall facing the neighbour's property was to be to her satisfaction or, in the case of a dispute, to the satisfaction of the Council. There was also a condition for the incorporation in the front wall of a visual truncation adjacent to the right of way.
12 The effect of the conditional approval was that in order for the walls to be lawful they needed to comply with the conditions.
13 On 20 October 2009 the Officer inspected the appellant's property. The necessary changes to the dividing wall had not been made. On 11 November 2009 a letter was sent to the appellant notifying her of the inspection and requiring compliance with the conditions of approval within 30 days. That letter was sent to the address given for the appellant in the application.
14 On 10 December 2009 the Officer returned to the appellant's property. The appellant's husband was present and denied receiving the letter of 11 November 2009. On 14 December 2009 a further letter was sent to the appellant attaching the previous correspondence.
15 On 23 December 2009 the City received a letter from the appellant's husband stating that the conditions relating to the dividing wall and front wall could not be complied with because of privacy and security considerations.
(Page 5)
16 The appellant did not exercise her right of review by the State Administrative Tribunal of the Council's decision. See s 252 of the Act.
17 The appellant did not cross-examine the prosecution witnesses in the Magistrates Court. At the conclusion of the prosecution case the appellant was asked if she wished to give or adduce any evidence in her defence. She declined to give evidence but sought to tender a bundle of documents. Over objection, the bundle was received as an exhibit in the proceedings. The appellant called no witnesses and made no submissions.
18 The magistrate gave short oral reasons for concluding that the charge was proved beyond reasonable doubt. Her Honour imposed a fine of $5,000 and ordered the appellant to pay the respondent's costs.
The single judge appeal
19 The appellant represented herself in the appeal.
20 For the reasons given by Hall J at [25] - [29], the matters raised by the appellant in the appeal were incapable of establishing that the magistrate had made any appealable error of fact or law in finding the appellant guilty of the offence.
21 The appellant also filed in the appeal an affidavit dated 11 October 2012 seeking to rely on extensive additional evidence. Hall J concluded that none of it was fresh evidence and in any event it was only marginally relevant and added nothing to the evidence before the magistrate. Leave to appeal was refused.
The appeal to this court
22 The appellant requires leave to appeal for each ground of appeal from the decision of Hall J: Criminal Appeals Act 2004 (WA) s 9, s 18. Where, after a review of an appellant's case, this court is not persuaded that any ground of appeal satisfies the statutory merits test of a reasonable prospect of succeeding, it holds an ex parte leave hearing. That occurred in this case.
23 The appellant, who again represented herself, relies on 22 grounds of appeal the flavour of which appears from the first ground which provides:
Material facts deposed in the Appellants [sic] Affidavit dated 11 October 12 that led to the Appellant being falsely charged as if the applicant and unlawfully prosecuted for non compliance of unlawfully imposed unlawful conditions of a fence application unofficially unlawfully
(Page 6)
- caused was not given due regard and consideration in the decision to refuse the Appellants application for leave to appeal.
24 The appellant's affidavit of 11 October 2012 was before Hall J. In addition, at the leave hearing the appellant's husband, who prepared the affidavit, was given leave to hand up further written submissions. By an indirect route (via a letter to the Chief Justice) the appellant's husband sought to rely on a final version of those written submissions. I have had regard to the final version.
25 The grounds of appeal are replete with allegations of unlawful conduct, illegal conduct, fabrication of evidence, corruption and falsification of records by a City planning officer. The officer is blamed for causing the appellant and her husband to make the Application.
26 The underlying basis for many of the grounds of appeal is that what had been constructed was a fence not a wall and that a fence is a development that does not require Council approval.
27 There is no merit in that claim. The relevant provisions of the Planning Scheme are as follows. Clause 1.3.5.1 relevantly provides:
(a) Subject to Clause … 1.3.5.1(b) … all use or development of land zoned … under this Scheme requires the prior approval of the Council.
(b) Except as otherwise provided in the Scheme, for the purpose of the Scheme the development listed in Schedule 17 does not require the approval of the Council. This clause shall apply to development listed in Schedule 17 regardless of when it was commenced or completed.
28 The Council had the power to approve an existing unauthorised development. Clause 1.3.5.5 relevantly provides:
(a) The Council may grant planning approval to a use or development already commenced or carried out regardless of when it was commenced or carried out, if the use or development conforms with the provisions of the Scheme.
(b) Development which was unlawfully commenced is not rendered lawful by the occurrence of any subsequent event except the granting of planning approval, and the continuation of the development unlawfully commenced is taken to be lawful upon the grant of planning approval.
29 Clause 1.2.1 of sch 17 defines fence to mean:
(Page 7)
- [U]pright structure erected or placed on land for the purpose of:
(a) enclosing an area of land;
(b) separating that land from other land; or
(c) preventing or controlling access to the land.
30 Pursuant to cl 2.1.7 of sch 17, the following development does not require Council's approval where the development is on land which is located in a zone created under cl 1.3.1.1 of the Scheme:
2.1.7 Fences, but only where the fence:
(a) if located within the street setback of any land used for residential or non-residential purposes:
(i) does not exceed 1.8 metres in height … above natural ground level;
…
(d) is not located within a visual truncation specified in the R-Codes.
32 Section 218 of the Act relevantly provides:
A person who -
(a) contravenes the provisions of a planning scheme; or
(b) …
(c) commences, continues or carries out any such development which is required to comply with a planning scheme otherwise than in accordance with any condition imposed under this Act or the scheme with respect to the development, or otherwise fails to comply with any such condition,
commits an offence.
33 The appellant carried out the development otherwise than in accordance with the conditions of approval. All of the necessary elements of the offence were established. The evidence adduced at trial was not
(Page 8)
- challenged and the presumption of regularity applied: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 [151]; Australian Crime Commission v Marrapodi [2012] WASCA 103 [47] - [48]. There is nothing in the evidence at trial to support a claim that the conditions were, as a matter of law, invalid or that correspondence from the Council was fabricated. The prosecution did not have to prove that 'the fence application was lawfully officially caused', or that the conditions 'were necessary or warranted'. If the Application had not been made and conditionally approved, the appellant would have contravened s 218(a) of the Act.
34 I turn now to the additional evidence upon which the appellant sought to rely. That evidence is properly characterised as 'new' rather than 'fresh' evidence. An appellate court will not allow an appeal unless the new evidence establishes that the appellant is innocent or raises such a doubt that the court is satisfied that the appellant should not have been convicted: Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 675 - 676; DPJB v The State of Western Australia [2010] WASCA 12 [66]. The new evidence falls well short of establishing either. Moreover, in considering whether the new evidence is capable of giving rise to a miscarriage of justice, the court must be satisfied that the evidence has cogency and plausibility: Lawless v The Queen (676 - 677). Much of the new evidence fails that test.
35 Hall J was correct to conclude that the appellant had no reasonably arguable grounds for challenging the conviction. Leave to appeal to this court should be refused and the appeal dismissed.
36 BUSS JA: I agree with McLure P.
37 MAZZA JA: I agree with McLure P.
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