Allmark v City of Stirling

[2012] WASC 394

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   ALLMARK -v- CITY OF STIRLING [2012] WASC 394

CORAM:   HALL J

HEARD:   15 OCTOBER 2012

DELIVERED          :   26 OCTOBER 2012

FILE NO/S:   SJA 1101 of 2011

BETWEEN:   SALLY ALLMARK

Appellant

AND

CITY OF STIRLING
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE E A WOODS

File No  :PE 39876 of 2010

Catchwords:

Magistrates Court - Appeal against conviction - Failure to comply with conditions of planning approval - Dividing wall - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     Mr D P Gillett

Solicitors:

Appellant:     In person

Respondent:     McLeods

Case(s) referred to in judgment(s):

Samuels v The State of Western Australia (2005) 30 WAR 473

HALL J: 

Introduction

1. This is a case where a dividing wall has been truly divisive.  What began as a dispute between neighbours ended with a prosecution in the Magistrates Court for failure to comply with the conditions of planning approval.  It should never have come to that.  Sometimes, however, stubbornness triumphs over commonsense.

Background

1. The appellant, Mrs Allmark, is the owner of a house in Wellington Parade, Yokine.  Construction of the house commenced in late 2007.  The appellant's husband designed and acted as builder in respect of the house.  Along part of the rear boundary a dividing wall was constructed.  Planning approval for the house did not include the dividing wall.

2. The neighbour concerned, Ms Rebecca Mapleson, agreed to the dividing wall being built on the condition that it did not exceed 1.8 metres in height.  The wall was in fact constructed to approximately 2.1 metres.  There was also a dispute regarding the finish to Ms Mapleson's side of the wall. 

3. A request by Ms Mapleson for the wall to be reduced to 1.8 metres was refused.  She then complained to the relevant local government authority, the City of Stirling. 

4. The City's Local Law defines a sufficient fence for the purposes of the Dividing Fences Act 1961 (WA) as being of a height of 1.8 metres above ground level and constructed without gaps so as to provide a visual barrier. Fences or walls above 1.8 metres can be approved by an officer of the City where all affected property owners do not object and the proposal does not have an excessive negative impact on the amenity of adjoining properties or the streetscape. Where objection is made, approval from the Council of the City is required.

5. On 5 June 2008 an application for approval of the already constructed dividing wall was submitted to the City.  The application form stated that the appellant was the owner and that appellant's husband was the applicant.  The same address was given for both the appellant and Mr Allmark.  This is relevant because correspondence was later sent to that address.

6. The application form includes a box for signing by the owner.  It was not disputed that the appellant's signature appeared in this box.  The applicant is not required to sign the form.  Attached to the application form was a letter from Mr Allmark dated 5 June 2008 setting out justifications for the existing height of the wall.  In short, these related to concerns about adequate privacy and security. 

7. The Council of the City has the power to approve unauthorised existing developments.  At the relevant time the applicable clause of District Planning Scheme No 2 for the City of Stirling was cl 1.3.5.5, which provides as follows:

   Unauthorised existing development:

   (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.

8. Some dividing fences and walls do not require approval.  Such exemptions are provided for in sch 17 of District Planning Scheme No 2.  The wall in this case did not fall within those exemptions.

9. Approval was also required in respect of a wall at the front of the property.  That wall abutted a right of way but did not include a necessary visual truncation.  For that reason it too fell outside the exemptions provided for in sch 17.

10. The Council resolved to approve the application subject to a number of conditions.  A written notice of the approval dated 16 February 2009 was addressed to the appellant as owner.  It also, mistakenly, referred to her as the applicant, though nothing turns on this. 

11. Amongst the conditions was one that specified that the height of the wall and the adjacent wall abutting the right of way was to be no higher than 1.8 metres above ground level.  There was a requirement that the surface finish of the wall facing Ms Mapleson's property was to be to her satisfaction or, in the case of a dispute, to the satisfaction of the Council.  There were also conditions in regards to variations to the front wall to incorporate a visual truncation adjacent to the right of way.

12. The effect of the conditional approval was that the existing dividing wall was not approved and was, therefore, unlawful.  In order for the wall to be lawful it would have to be reduced in size and finished as specified. 

13. On 20 October 2009 a City officer inspected the property.  The necessary changes to the dividing wall and the front 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 the approval within 30 days.  The letter also requested an explanation for why the conditions had not been complied with and stated that failure to comply could result in the matter being referred to the City's solicitors for further action.  That letter was sent to the address given for the appellant in the application.

14. On 10 December 2009 the same City officer returned to the property to undertake a further inspection.  Mr Allmark was present on this occasion and denied receiving the letter of 11 November 2009.  The officer also told Mr Allmark that unless he was acting on behalf of the property owner, namely the appellant, the officer would not be able to deal with him further and would need to deal directly with the appellant.  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 Mr Allmark.  He commenced the letter by stating that the appellant had authorised him to write on her behalf.  He stated that the conditions relating to the height and finish of the dividing wall and the front wall visual truncation could not be complied with.  His stated reasons for this was similar to those that had been referred to in the original application, namely privacy and security.

16. On 12 January 2010 the City officer who had conducted the inspections wrote to Mr Allmark advising that in light of the non‑compliance the City intended to refer the matter to its solicitors to investigate further action.  Reference was made to penalties applicable under the Planning and Development Act 2005 (WA). The letter noted that the decision to grant approval with conditions could have been the subject of an application for review under the State Administrative Tribunal Act 2004 (WA), but that any such review should have been initiated within 28 days.

17. There was further correspondence but it is unnecessary to refer to it.  The matter was referred to the City's solicitors and proceedings were commenced against the appellant.  The appellant entered a plea of not guilty and the matter was set down for a hearing in the Magistrates Court on 19 August 2011. 

Magistrates Court trial

1. At the hearing in the Magistrates Court the appellant represented herself.  The magistrate explained the nature of the proceedings and the appellant's obligation to put her case to witnesses called by the prosecution.  She said that she understood but said that she did not intend to say anything.  The magistrate said that that was up to the appellant but if the prosecution evidence was uncontested there was a risk that she would be convicted.  The appellant said, again, that she understood.

2. The prosecution called two witnesses, the neighbour Ms Mapleson, and the City officer who had conducted the inspections and corresponded with Mr Allmark.  Those witnesses gave evidence mirroring the facts referred to above.  The application, approval document, correspondence and Planning Scheme text were all received into evidence.  Ms Mapleson stated that, as at the day of the hearing, the conditions had not been complied with.

3. At the conclusion of the prosecution evidence 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 that included further correspondence, a copy of the relevant Council minutes and a copy of the application.  Despite an objection from the prosecution that the correspondence included hearsay, the bundle was received as an exhibit in the proceedings.  The appellant called no witnesses and made no submissions in regards to either the prosecution evidence or the documents that she had tendered.  I have examined the documents that were tendered and they add nothing relevant to the facts as stated. 

4. The magistrate gave short oral reasons for concluding that the charge was proved beyond reasonable doubt.  In particular, she stated that she was satisfied that the evidence established that the appellant was the owner of the property at all relevant times, that the conditions on the approval in respect of the dividing wall had been made known to the appellant and that those conditions had not been complied with.

5. The maximum penalty for an offence of this nature is $50,000 with a daily penalty of $5,000 per day.  In this case there had been non‑compliance for 113 days.  Her Honour imposed a fine of $5,000 but declined to impose any daily penalty.  She also ordered that the appellant pay the respondent's costs. 

The appellant's contentions

1. On 15 September 2011 the appellant filed an appeal notice seeking leave to appeal against her conviction.  The appeal notice did not state any grounds of appeal.  However, attached to the appeal notice was a 15 page document setting out in 43 numbered paragraphs which are headed 'grounds of appeal'.  Many of these paragraphs contain assertions that were not the subject of any evidence in the Magistrates Court.  Others seek to raise questions regarding the admissibility of documents tendered at the trial to which no objection was taken at the time. 

2. At the hearing of the appeal the appellant again appeared for herself.  The principal theme in the grounds of appeal and in the argument raised by the appellant at the appeal hearing was that although she was the owner of the property, all of the building work and dealings with the City had been the responsibility of her husband.  She submitted that the property was only in her name as a matter of convenience, but that she had never had any involvement with the planning process.

3. There are a number of obvious difficulties with the appellant's argument.  Firstly, it is not contested that at all relevant times she was the registered owner of the property.  It is reasonable to infer that work undertaken to develop a property is undertaken with the consent of the owner.  Secondly, the appellant signed the application for approval dated 5 June 2008.  It would be difficult in these circumstances for her to deny knowledge of, and responsibility for, compliance with the relevant planning approval.  Thirdly, the letters sent by the City on 11 November 2009 and 14 December 2009 noting that there had been non‑compliance were both addressed to the appellant.  This evidence supported the conclusion that the appellant was responsible for the non‑compliance.  That evidence was not questioned at the trial and the appellant gave no contrary evidence.

4. On the hearing of the appeal the appellant said that she had signed the application document without reading or understanding it.  That submission was unsupported by any evidence at the trial.  The appellant had the opportunity to give evidence before the magistrate but declined to do so. 

5. In written submissions the appellant has submitted that she was unjustly charged because on the application form her husband was named as the applicant rather than her. This submission misunderstands the nature of the charge. The charge was one of failing to comply with a condition imposed with respect to a development contrary to s 218(c) of the Planning and Development Act.  It was not an element of that offence that the person charged be named as the applicant in the application for planning approval form.  What is required is that the person has responsibility for ensuring compliance with conditions.  As an owner who had signed the relevant approval form the responsibility of the appellant for the non‑compliance was undeniable.

6. An examination of the evidence before the magistrate shows that it was clearly open to conclude that the appellant was guilty of the offence charged.  In the absence of any contrary evidence that conclusion was inevitable.

Other matters

1. On the appeal the appellant filed an affidavit seeking to rely on extensive additional material.  I have examined that material and none of it is fresh evidence.  In any event, it is only marginally relevant and adds nothing to the evidence that was before the magistrate.  Much of it is concerned with arguing that the City was wrong not to approve the wall as built.

2. Insofar as there is any suggestion that the penalty imposed was excessive it must be rejected.  Having regard to the maximum penalties and the deliberate and protracted defiance of the local authority, the fine imposed was clearly open to the magistrate.

3. I note that at the hearing of this appeal the appellant requested that her husband speak on her behalf.  I refused that request for the following reasons.  First, despite the appellant's claims to the contrary, the matters in issue were simple.  Secondly, the appellant represented herself in the Magistrates Court.  Thirdly, having regard to Mr Allmark's correspondence tendered at the trial I was far from satisfied that anything that he could say could possibly assist in elucidating the issues.  Fourthly, the appellant filed extensive written submissions and handed up a written response to the respondent's outline of submissions at the commencement of the hearing.

Conclusion

1. Section 9 of the Criminal Appeals Act 2004 (WA) provides that leave of the court is required for each ground of appeal and that leave to appeal must not be given unless the court is satisfied that a ground has a reasonable prospect of succeeding. See also Samuels v The State of Western Australia (2005) 30 WAR 473. If no ground of appeal meets this test the appeal must be dismissed.

2. For the reasons stated above none of the grounds of appeal has a reasonable prospect of success.  Accordingly, the appeal must be dismissed.