Aviation Consolidated Holding Pty Ltd v McMullen
[2023] TASSC 18
•22 June 2023
[2023] TASSC 18
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Aviation Consolidated Holding Pty Ltd v McMullen [2023] TASSC 18 |
| PARTIES: | AVIATION CONSOLIDATED HOLDING PTY LTD |
| v | |
| McMULLEN, Tony (in his capacity as General Manager of | |
| Glenorchy City Council) | |
| FILE NO: | 3516/2022 |
| DELIVERED ON: | 22 June 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 13 June 2023 |
| JUDGMENT OF: | Marshall AJ |
| CATCHWORDS: |
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters - Applicant found proven of failing to comply with Building Order – Whether finding of elements proven beyond reasonable doubt was open to magistrate – Not unreasonable for magistrate to rely on drawings, plans and photographs in evidence – Ground of review not established – Notice to review dismissed.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: F Cangelosi Respondent: A Walker
Solicitors:
Applicant: Leonard Fernandez Respondent: Simmons Wolfhagen
| Judgment Number: | [2023] TASSC 18 |
| Number of paragraphs: | 18 |
Serial No 18/2023 File No 3516/2022
AVIATION CONSOLIDATED HOLDINGS PTY LTD v
TONY MCMULLEN (in his capacity as General Manager of Glenorchy City Council)
| REASONS FOR JUDGMENT | MARSHALL AJ 22 June 2023 |
1 The matter before the Court is a notice to review orders made by the Chief Magistrate at Hobart on 16 December 2022 whereby her Honour found proven a complaint that the applicant had failed to comply with a Building Order contrary to s 246 of the Building Act 2000. The sole ground of review is that "(t)he learned Chief Magistrate erred in that it was not open to her, acting reasonably, to find the elements of the charge proven beyond reasonable doubt."
2 As Pearce J said in Jones v Bonde (No 2) [2021] TASSC 35 at [13] in such cases, "(t)he applicant is not entitled to a rehearing. It is not for me to weigh the evidence and reach my own conclusions. The question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which she or he did."
Background
3 On 10 December 2019, Glenorchy City Council ("the Council") issued a building permit to the applicant to build a single dwelling at a location in Glenorchy. As her Honour said in the opening paragraph of her decision:
"The Building Permit approved the deposit of a limited amount of fill. The Council asserts that [the applicant] deposited fill on that site that exceeded the approved amount and introduced fill to areas on the site not approved. The Council issued [the applicant] with a Building Order requiring the removal of all the excessive fill. It is alleged that [the applicant] failed to comply with the Building Order."
4 The permit authorised fill to be placed for the purposes of a pad on which a concrete slab was to be poured. The Chief Magistrate at [11] of her reasons referred to "fill" by reference to dictionary definitions as meaning:
• "material, typically loose or compacted, which fills a space, especially in building or engineering work". • "a mass of earth, stones etc, used to fill a hollow". 5 At [12] the Chief Magistrate said:
"It is apparent that identifying fill does not require specific expert knowledge, it is a matter of observing the material in the particular location and considering whether it appears to be material which is in addition to the naturally occurring land."
6 Prior to issuing the Building Order the Council issued a Building Notice to the applicant requiring it to show cause why a Building Order should not be issued and also requiring specific work to be undertaken.
7 The applicant raised three grounds upon which it says the Chief Magistrate did not act reasonably in finding the charge proved beyond reasonable doubt.
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The grounds of review
8 The first complaint of the applicant is that it could not be ascertained on the prosecution case where precisely it was that the applicant was not permitted to locate fill on the site so it was not possible for it to be in breach of the Building Order. Counsel for the applicant submitted that the relevant drawings did not exclusively show where the fill was permitted to be located and where it was not permitted to be located. It followed, according to counsel for the applicant, that there was no clear evidence before the Chief Magistrate as to the requirements of the Building Order.
9 In response, counsel for the respondent submitted that the plans did show the limits of the permitted fill. Counsel also referred to drawings in evidence regarding the fact that the fill was not authorised to be placed within 11 metres of the rear boundary.
10 The submission of the respondent is supported by building specification plans covering the site which were in evidence and found in exhibits CB 38, 41, 42 and 49 respectively. There was evidence which enabled the Chief Magistrate to determine as she did at [16] that the Building Permit allowed fill to be used "in relation to supporting the concrete slab". Fill located on the site and not supporting the concrete slab was not permitted by the Building Permit or the Building Order according to the Chief Magistrate. The Chief Magistrate cannot be said to have acted unreasonably in coming to that view.
11 Next the applicant submitted that there was no reliable evidence that fill remained on the site on any location after 21 January 2021. January 21 was the date for compliance with the Building Order after the resolution of an appeal against the order to a planning tribunal. Counsel for the applicant contended that there was no evidence that "the site (from 21 January 2021) did not adhere to the normal contour of the land and the position of the normal ground line depicted in the building permit drawings."
12 In response the respondent submitted that by virtue of the drawings in the Building Permit any fill within 11 metres of the rear boundary of the site must be fill which is not approved. Counsel for the respondent relied on photos in evidence before the Chief Magistrate which showed that the rear of the site does not adhere to the normal contour of the land.
13 It was not unreasonable for the Chief Magistrate to rely on these photographs and the evidence of the witness who took them to show that the respondent had failed to remove unapproved fill in accordance with the requirements of the Building Order.
14 The final topic raised by the order to review was that compliance with the settlement of the appeal before the planning tribunal carried with it not only an extension of time to apply but the identification of the precise work required by the Council of the applicant. In the absence of evidence about what that settlement contained it was submitted that the Building Order could not be breached. The work referred to was found within a document filed in the tribunal called "Statement of Facts and Contentions" but that document was not tendered before the Chief Magistrate.
15 At [8] of her decision the Chief Magistrate said:
"In my view, it is clear that other [than] the time frame the requirements of the Building Order issued on 30 October 2020 were not altered due to the appeal process before the Tribunal. The Statement of Facts and Contentions prepared for the Tribunal was for the purposes of the Tribunal proceedings, and does not derogate from the allegation that excess fill on the site was in breach of the Building Permit and the Council required that Aviation Consolidated remove it as set out in the Building Order. The absence of the Statement of Facts and Contentions before this Court is not in my view fatal to the prosecution case."
16 The Chief Magistrate's reasoning in the above regard was not unreasonable. The Statement of Facts and Contentions by itself does not have the status of an amendment to the Building Order. At the
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very least there is a reasonable view open to that effect and there was nothing unreasonable about the
Chief Magistrate forming that view.
Conclusion and Order
17 Having regard to the foregoing it has not been established that upon the evidence, the Chief Magistrate ought not, as a reasonable person, have come to the view that the complaint before her had been proved beyond reasonable doubt.
18 Accordingly, the Court will order that:
1 The notice to review is dismissed.
2 The applicant pay the respondent's costs of the proceedings.