Babic v Director-General, Transport Canberra and City Services (Administrative Review)
[2023] ACAT 37
•10 July 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BABIC & ANOR v DIRECTOR-GENERAL, TRANSPORT CANBERRA AND CITY SERVICES (Administrative Review) [2023] ACAT 37
AT 63/2022
AT 64/2022
AT 65/2022
Catchwords: ADMINISTRATIVE REVIEW – public unleased land – plant removal direction – objects removal direction – repair direction – decision that applicant is required to remove plants on public unleased land is confirmed – decision that applicant is required to remove objects on public unleased land is confirmed – decision that applicant is to repair public unleased land is confirmed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 67A, 68, 69
Legislation Act 2001 s 180
Public Unleased Land Act 2013 ss 19, 21, 22, 34, 41, 49, 50, 53, 55, 98, 127
Utilities (Technical Regulation) Act 2014
Subordinate
legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 rr 128, 132
Cases cited:Alcock v DG Territory and Municipal Services [2016] ACAT 78
George v Rockett and Another [1990] HCA 26
Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner for ACT Revenue [2014] ACAT 31
John Pappas v Transport Canberra and City Services [unreported, ACAT, 23 September 2021]
Miles & Anor v Director-General Transport Canberra and City Services Directorate [2018] ACAT 69
Walkington & Ors and ACT Planning and Land Authority [2010] ACAT 81
Tribunal:Senior Member L Beacroft
Date of Orders: 10 July 2023
Date of Reasons for Decision: 10 July 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 63/2022
AT 64/2022
AT 65/2022
BETWEEN:
SAMANTHA BABIC
First Applicant
AND:
BEAU ANDRE BABIC
Second Applicant
AND:
DIRECTOR-GENERAL, TRANSPORT CANBERRA AND CITY SERVICES
Respondent
TRIBUNAL:Senior Member L Beacroft
DATE:10 July 2023
ORDER
The Tribunal orders that:
In the matter of AT 63/2022, the decision set out in the Plant Removal Direction dated 12 September 2022 and directed to Ms Samantha Babic is confirmed;
In the matter of AT 64/2022, the decision set out in Objects Removal Direction dated 9 September 2022 and directed to Ms Samantha Babic is confirmed;
In the matter of AT 65/2022, the decision set out in Repair Direction dated 9 September 2022 and directed to Ms Samantha Babic is confirmed.
Orders 1, 2, and 3 are to be complied with by 11 September 2023.
In complying with Orders 1, 2, and 3 Ms Babic will use as the reference for the boundary between her property and the public unleased land that is the subject of the Directions the Survey Report, by MMB Surveyors (P W Mayberry) of the Applicants’ property and the public land, dated 4 October 2022, Annexure A, Submission for the Respondent, dated 1 December 2022
In complying with Orders 1, 2, and 3 Ms Babic will use as the reference for the repair to be completed under Order 3, the NearMap image dated 1 December 2020, Annexure C, Further and Final Submissions for the Respondent, dated 13 January 2023.
………………………………..
Senior Member L Beacroft
REASONS FOR DECISION
Background
Ms Samantha Babic and Mr Beau Andre Babic (the applicants) were applicants in a review of three decisions made by the Director-General, Transport Canberra and City Services (the respondent). The applicants are the owners of property in Curtin, ACT (the applicants’ property) which is held as tenants in common with Ms Babic holding 99% share.[1] The decisions under review were three Directions issued by the respondent. The Directions concerned public unleased land that serves as a nature strip (the public land, the nature strip) and which is adjacent to the applicants’ property.
[1] Final Submission for the Respondent, 10 February 2023, Attachment “Title Search” for the property
The three Directions were as follows: Direction as amended on 12 September 2022 to remove plants (AT 63/2022, Plant Removal Direction), as amended on 9 September 2022 to remove objects (AT 64/2022, Object Removal Direction), and as amended on 9 September 2022 to repair (AT 65/2022, Repair Direction), under sections 34, 98, and 21 respectively of the Public Unleased Land Act 2013 (the Act).[2]
[2] Submissions for the Respondent dated 1 December 2022 at [14], [25], and [29]-[30]; T-Docs 4, 5 and 6: pages T68-77
The Applicants sought Orders to set aside all three Directions.[3]
[3] Applications dated 19 August 2022 T-Doc 2: pages T7-33
The Respondent sought Orders that confirmed the three Directions and that allowed 28 days from any Order for the applicants to comply. The respondent noted that failure to comply with the Directions is an offence under section 22 of the Act and regulatory action may be pursued by the respondent.[4]
Summary chronology
[4] Further and Final Submissions for the Respondent dated 13 January 2023 at [48]
On 11 May 2022 the respondent received an anonymous complaint about structures which the applicants had allegedly installed on the public land. The respondent then conducted an investigation.
Three initial Directions dated 22 July 2022 (Initial Directions) were issued to “Ms Sam Babic” by the respondent.[5] The address on the Directions was the address for the applicants’ property shown on the Title rather than the alternative address now used by the applicants (note, the applicants’ property is a corner property so there are 2 street frontages), and the suburb contained a spelling error.
[5] T-Docs 7, 8 and 9, pages T78-T85
Applications for review were submitted to ACAT on 19 August 2022 by Ms Samantha Babic.[6]
[6] Applications dated 19 August 2022; T-Doc 2, pages T7-T33
The respondent amended the three Directions in September 2022 (the Directions) to correct “errors”.[7] The three Directions were issued to “Ms Samantha Babic” and included the address now used by the applicants.
[7] T-Docs 4, 5 and 6, pages T68-T77; Submissions for the respondent dated 1 December 2022 at [8]‑[10]
The tribunal directed that Beau Andre Babic, who is a co-owner of the applicants’ property and the husband of Ms Babic, be joined as an applicant to the matter in an Order dated 6 October 2022.
A hearing was held on 14 December 2022, a site view was conducted on 31 January 2023, and following that the parties made further and final submissions.
Applicants’ contentions
The applicants agreed that they have placed their plants and objects on the public land and that the survey provided by the respondent dated 4 October 2022 (the survey) is accurate.[8] They disputed that their plants and objects create safety issues for the public or exclude the public, and they denied that that they have damaged the land.[9]
[8] Submissions of the applicants, dated 8 December 2022 at [3]; Survey Report by MMB Surveyors (P W Mayberry) of the applicants’ property and the public land, dated 4 October 2022, Annexure A; Submissions for the respondent, dated 1 December 2022 at [11]
[9] Submissions of the applicants, dated 8 December 2022 at [2]; Submissions of the applicants, dated 30 January 2023 at [2]
Regarding the Plant Removal Direction, it directed that Ms Babic remove a “Camelia Hedge that is approximately 1.5 metres off the kerb”, and it set out a timeframe and other relevant information.[10] The applicants agreed that their camelia hedge is planted on the public land.[11] However they contended that it is consistent with the “overall tone” of the “Guidelines for the Use of Residential Nature Strips” (the Guidelines) in that it allows for safe access and use by the public.[12] Also, they contended that the hedge meets the required 1.5m clearance from the road and indeed that it has a 1.7m clearance, it is a suitable plant, it does not stop public access who mostly choose to walk on the road, and in any case a person with a double-pram can safely walk on the nature strip with the hedge in place.[13] They contended that there is inadequate evidence for the Tribunal to be satisfied that there is a “reasonable belief” that the hedge endangers the public.[14]
[10] T-Doc 4, pages T68-T70
[11] Submissions of the applicants, dated 8 December 2022 at [4]
[12] Submissions of the applicants, dated 8 December 2022 at [4]-[5]; Appendix A, “Guidelines for the Use of Residential Nature Strips;, T-Doc 18, pages T111, T117, and T129-T130
[13] Submissions of the applicants, dated 8 December 2022 at [12], [17]
[14] Submissions of the applicants, dated 30 January 2023 at [13]-[21]
The applicants contended that that there are many examples near them where other residents use other public land in a manner that does not comply with the Guidelines, that the respondent has failed to enforce the Guidelines in the neighbourhood, and that the respondent is “estopped from picking and choosing how to sporadically apply the guidelines”.[15]
[15] Submissions of the applicants, dated 8 December 2022 at [18]
Regarding the Objects Removal Direction, it set out a timeframe and other relevant information and required Ms Babic to remove unauthorised objects on the public land, namely “Chainlink Fence, Concrete Behind Fence, Bricks, Power point, Playground, Swingset, Brick wall, Synthetic Turf”.[16] The applicants stated that the fence is open in parts and contended that it is “only temporary to enable to [sic] the plants to be established” with most posts not concreted into the ground.[17] They contended that the objects do not prevent the public accessing the public land. Ms Babic said that uninvited neighbourhood “kids run and play on the playground on a regular basis”.[18] They contended that the placing of the objects on the public land is not ‘use’, rather it is a “passive activity and merely decorative in nature and intent”.[19] They contended that the retaining wall is necessary to their property and was approved as part of their building approvals, and in any case it is not using the land but “simply retaining the land so it is safe to walk on”.[20]
[16] T-Doc 5, pages T71-T73
[17] Submissions of the applicants, dated 8 December 2022 at [3], [10]
[18] Transcript of proceedings, 14 December 2022, page 29
[19] Submissions of the applicant, dated 30 January 2023 at [39]
[20] Transcript of proceedings, 14 December 2022, page 78
However, the applicants agreed that they could remove a portion of the fence and hedge at the end of the public land “to remove any perception of a barrier”, move the play equipment entirely onto the applicants’ property, and remove the concrete strip behind one part of the hedge.[21] They stated that the power point has already been removed.[22] They stated that they would submit an application to have the synthetic turf remain on the public land.[23]
[21] Submissions of the applicant, dated 8 December 2022 at [5]-[7]
[22] Submissions of the applicant, dated 8 December 2022 at [9]
[23] Submissions of the applicant, dated 8 December 2022 at [11]
In regard to the Repair Direction, it set out a timeframe and other relevant information and required Ms Babic to “repair the land … make the nature strip even … lightly [cultivate the] soil … for receiving grass or turf … lay turf or seed … with care to support establishment of grass”.[24] It was issued under section 21 of the Act.[25] The applicants contended that they had not caused any damage. They stated that the Direction to repair is “pre-emptive” in that it has been issued before valid decisions to remove the hedge and objects have been made.[26]
[24] T-Doc 6, pages T74-T77
[25] Further and Final Submissions for the respondent dated 13 January 2023 at [39]-[41]
[26] Submissions of the applicant, dated 8 December 2022 at [13]-[14]; Submissions of the applicant, dated 30 January 2023 at [47]-[48]
The applicants contended that the Directions should be set aside due to various legal errors, including that the respondent has taken into account irrelevant information, failed to take into account relevant information, that the Direction Notices are defective, that the Directions were never issued to both applicants, and there has been jurisdictional error.[27] They contended that they were denied natural justice prior to the Directions being issued and during the tribunal proceedings.[28]
[27] Submissions of the applicant, dated 30 January 2023 at [4]; Submissions of the applicant, dated 24 February 2023 at [3], [7]-[17]
[28] Submissions of the applicant, dated 30 January 2023 at [5]-[9]
The applicants stated that if the Tribunal confirms the reviewable decisions, they will need more than 28 days to comply.
Respondent’s contentions
The respondent contended that the applicants have:
In effect, taken over an area of public unleased land, erected a fence to exclude members of the public from that … land, erected a play swing set and planted a hedge in that area …[29]
[29] Submissions for the respondent dated 1 December 2022 at [1]
The respondents provided evidence in the form of various diagrams of the boundary between the public land and the applicants’ property, to show the area of public land being occupied by the applicants.[30]
[30] Exhibit R2 (Diagrams 1,2 and 3) as amended in Annexure A of Further and Final Submissions for the respondent dated 13 January 2023 at [15]
In relation to the Plant Removal Direction, it required Ms Babic to remove the hedge because there is a reasonable belief that it is “endangering the safety of anyone on Public Unleased Land”.[31] The respondent stated that it made the Direction to Ms Babic given she is an occupier of the public land on which the hedge grows, as required under section 34 of the Act.[32] The respondent contended that the Act required it to issue the Directions to “the occupier” of the unleased public land, not being the Territory, which it did.[33] While not defined, the ordinary meaning of ‘occupier’ is that the occupier takes possession or exercises dominion.[34]
[31] T-Doc 4, pages T68-T73
[32] Further and Final Submissions for the respondent dated 13 January 2023 at [5]-[12]
[33] Further and Final Submissions for the respondent dated 13 January 2023 at [5]
[34] Further and Final Submissions for the respondent dated 13 January 2023 at [7]
The respondent contended that the hedge endangered public safety because it contravened the Guidelines which support “safe passage of pedestrians and cyclists”.[35] In particular, they contended as follows:
(a)The hedge does not have clearance of 1.5 metres from the road and does not meet the larger clearance zones required for corner blocks being “6 m[etres] from the road intersection”,[36] and the respondent provided evidence including various diagrams.[37]
(b)The camellia is an unsuitable plant for maintaining visibility between drivers on the road and users of the nature strip[38] in that it will grow higher than the allowed 50cm and is currently well above the latter height,[39] it will and has grown wide which reduces the area for the public to use as access between it and the road,[40] it is not in the list of recommended plants for nature strips, it is not “in line with Austroad Guidelines”, and is not allowed under the Guidelines without approval.[41]
(c)The hedge (and fence) result in the nature strip between the hedge and the road not being accessible for all members of the public. For example, it is not safely accessible for a member of the public on mobility equipment, with a guide dog, and some cyclists.[42] The hedge along with the fence “is used to create a barrier” to the public accessing the public land on the inner side of the hedge, and even if shortened as the applicants propose this remains an issue.[43]
[35] Submissions of the respondent dated 1 December 2022, [16-17] citing The Guidelines page 18; Further and Final Submissions for the respondent dated 13 January 2023 at [16]-[18]
[36] “Clearance Zones, Guidelines for the Use of Residential Nature Strips”, T-Doc 18, pages T121‑T123; Transcript of proceedings, 14 December 2022, pages 31-38
[37] Exhibit R2 (Diagrams 1 and 2) as amended by Annexure A of Respondents Further and Final Submissions dated 13 January 2023 at [15]
[38] Submissions of the respondent dated 1 December 2022 at [18]-[21]
[39] Figures 3-8, Exhibit R1
[40] Figures 9-10, Exhibit R1
[41] “Table 1: A summary of shared expectations for the management of Canberra’s nature strips, Table 3: Nature strip uses that Do Not Require approval, and Appendix A, Guidelines for the Use of Residential Nature Strips”, T-Doc 18, pages T111, T117, and T129-T130; Transcript of proceedings, 14 December 2022, pages 27, 51
[42] Transcript of proceedings, 14 December 2022, page 51
[43] Transcript of proceedings, 14 December 2022, page 53
The respondent contended that the hedge “prevents access to … utility lines”.[44] Following questions raised by the applicants at the hearing about the accuracy of initial information submitted by the respondent relevant to this issue, the respondent engaged a provider to locate utility services at the public land. A study was conducted on 20 December 2022 and the report concluded that there is a gas main, street electricity powerline, and a water main under the public land.[45] The respondent contended that this supports its claim that the hedge is unsafe in that it “obstructs access to utility lines”.[46] It contended that a Notice could be issued under the Utilities (Technical Regulation) Act 2014 due to the interference of the hedge with safe or efficient operation of the utilities, further demonstrating the obstruction and safety issues raised by the hedge.[47]
[44] Submissions of the respondent dated 1 December 2022 at [22]-[23]
[45] Further and Final Submissions for the respondent dated 13 January 2023 at [21]-[22] and Annexure B, Commerce Communications Pty Ltd
[46] Further and Final Submissions for the respondent dated 13 January 2023 at [27D]
[47] Further and Final Submissions for the respondent dated 13 January 2023 at [23]-[26]
In relation to the Objects Removal Direction,[48] the respondent contended that it was issued under section 98 of the Act on the basis that the specified objects were unauthorised and excluded some or all members of the public. In its final submissions the respondent acknowledged that some of the objects had been removed by the applicants or the applicants had agreed to voluntarily remove them.[49] However, the respondent required the orders they sought to ensure compliance by the applicants.
[48] T-Doc 5, pages T71-T73
[49] Further and Final Submissions for the respondent dated 13 January 2023 at [30]-[32]
The respondent denied that the chain-link fence is temporary as claimed by the applicants and contended that it is permanent. It has some posts concreted into the ground, does not comply with the description of an allowed temporary fence in the Guidelines in that it is not “rope or string, supported by stakes”, has been in place well past the allowed 13 weeks allowed under the Guidelines, and the applicants have not stated they intend to remove it.[50] The fence excludes members of the public from the public land, and even if a portion of the fence is removed, the nature of the fence and its positioning nonetheless “creates a false impression that the public unleased land area on the inside of the fence is leased land belonging to the applicants”.[51] The respondent denied that all members of the public can effectively access and use the unfenced public land as a nature strip. It stated that it does not meet the 1.5m clearance.[52] In any case, some members of the public require more than a 1.5m nature strip for example, “postal services, cyclists, people on mobility devices etc” and part of the remaining nature strip is narrowed due to a street sign.[53]
[50] Further and Final Submissions for the respondent dated 13 January 2023 at [33]
[51] Further and Final Submissions for the respondent dated 13 January 2023 at [33]
[52] Diagrams 1 and 2, Exhibit R2 as amended by Respondent’s Further and Final Submissions dated 13 January 2023 at [14]-[15]
[53] Further and Final Submissions for the Respondent dated 13 January 2023 at [33]
In relation to the “Brick Wall”, it was clarified during the proceedings to be a retaining wall with a step at one end.[54] The respondent denied that it was approved as part of the applicants’ building approvals or that it needs to remain for safety reasons.[55] It stated that it is not permitted under the Act, and that it creates a safety hazard because the public land now has a step due to a height difference whereas it was previously “flat and wide, allowing for all members of the public to safely pass”.[56]
[54] Figure 17, Exhibit R1; Transcript of proceedings, 14 December 2022, pages 72-74
[55] Building Approval for the applicants’ property, dated 8 May 2021 at T-Doc 16, page T100; Transcript of proceedings, 14 December 2022, page 75
[56] Further and Final Submissions for the Respondent dated 13 January 2023 at [34]-[36]
In relation to the synthetic turf, the respondent contended it must be removed – it is not authorised, no application to have it approved has been submitted by the applicants, and it contributes to barriers for public access to the public land.[57]
[57] Further and Final Submissions for the Respondent dated 13 January 2023 at [37]; Transcript of proceedings 14 December 2022, page 80
In relation to the Repair Direction, the respondent contended that the Repair Direction is not pre-emptive because the applicants have already caused damage for example “the cut out land, the concrete, the posts that have been put on the ground”, and if the other Directions are upheld further damage will be caused by the applicants when complying with these which needs to be repaired.[58] If the other two Directions are not upheld, the respondent contended that the Repair Direction can be upheld because the applicants have created damage to the public land as shown by NearMap images the respondent submitted that date from before and after the applicants occupied the public land.[59]
[58] Further and Final Submissions for the Respondent dated 13 January 2023 at [39]-[42]; Transcript of proceedings, 14 December 2022, page 87
[59] Further and Final Submissions for the Respondent dated 13 January 2023 at [35], [41], Annexure C
The respondent agreed that “that there are other people on the street who have not complied with the guidelines”.[60] But it contended this is an enforcement issue and does not undermine the validity of the Directions issued in this case.
Summary of law
[60] Transcript of proceedings, 14 December 2022, page 52
The tribunal stands in the shoes of the decision-maker when reviewing reviewable decisions. The ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) states:
68 Review of decisions
(1)This section applies if the tribunal reviews a decision by an entity.
(2)The tribunal may exercise any function given by an Act to the entity for making the decision.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see, s 104).
(3)The tribunal must, by order—
(a)confirm the decision; or
(b)vary the decision; or
(c)set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
69 Effect of orders for administrative review
(1)This section applies if the tribunal makes an order under section 68 (3) in relation to a decision.
(2)The order—
(a)is taken to be the decision of the decision-maker; and
(b)takes effect from the day the tribunal makes the order, unless the tribunal orders otherwise.
The ACAT Act states that the decision-maker “must take reasonable steps to give written notice (a reviewable decision notice) of the decision to any persons whose interests are affected by the decision”,[61] but “a failure to comply with this section … does not affect the validity of the decision”.[62]
[61] ACT Civil and Administrative Tribunal Act 2008, section 67A(1)
[62] ACT Civil and Administrative Tribunal Act 2008, section 67A(4)
The Act allows the respondent to issue a Direction where “a person causes damage … to public unleased land … and the damage is not authorised”.[63]
[63] Public Unleased Land Act 2013, section 21
The Act allows the respondent to issue a Direction to “the occupier of the land on which the tree or other plant is growing” if there is a reasonably held belief that the “tree or other plant endangers the safety of anyone on public unleased land”.[64]
[64] Public Unleased Land Act 2013, section 34
The Act allows the respondent to issue a Direction for removal of an object when there is unauthorised use of public unleased land by placing an object there.[65] ‘Use’ is defined as: “for part 3 (Public unleased land permits)—see section 41” and section 41 defines it to be “an activity on the public unleased land” that “excludes some or all members of the public”.[66]
[65] Public Unleased Land Act 2013, section 98
[66] Public Unleased Land Act 2013, Dictionary (definition of ‘use’), sections 41, 98
Various cases are relevant, and some were referred to by one or both the parties during proceedings, as follows:
(a)In John Pappas v Transport Canberra and City Services [unreported, ACAT, 23 September 2021] (Pappas) the tribunal confirmed a Direction to remove rocks placed around a nature strip tree. The tribunal found that while other parts of the public land nearby appeared to be similarly used, and perhaps used without authorisation, this is an enforcement issue and not relevant to the tribunal’s decision.[67]
(b)In the Alcock v DG Territory and Municipal Services [2016] ACAT 78 (Alcock) the works consisted of a concrete block retaining wall, a Colorbond fence and other fencing, a strip of concrete, a series of garden terraces, and this work had necessitated “earthmoving works which had altered the contours of the public land”.[68] The respondent had issued a Repair Direction under section 21 of the Act for the works and the works were unauthorised. The tribunal noted that the applicant made an oral submission during the ACAT proceedings to seek approval for the works. The tribunal declined to approve the oral submission because no written application had been made, the tribunal could not comply with the consultation requirements under the Act, and the tribunal was engaged in a review of a Direction based on unauthorised works, citing Walkington & Ors and ACT Planning and Land Authority [2010] ACAT 81.[69] The tribunal found that there was damage to the public land due to these works in that they impaired the “value, usefulness or normal function” of the public land, and this was the case even if some or all the works were temporary or reversible.[70] The earthworks were found by the tribunal to be damage for the purposes of the Act because they physically altered the public land.[71] The construction of gardens and concreting on the public land were found to be damage for the purposes of the Act because they affected the visual amenity of the public land and also affected the way the public can use the public land, even if they largely were sitting on top of the land and were of high quality.[72]
(c)In Miles & Anor v Director-General Transport Canberra and City Services Directorate [2018] ACAT 69 (Miles) the tribunal set aside a decision to refuse approval to allow use between the leased land and a public footpath on unleased public land, being paving and a trellis and arbour for a climbing rose. The tribunal in Miles distinguished the case of Alcock in that the works in the Alcock case were much more substantial in their effects on the public land.[73] In Miles the tribunal found that the works made no substantial change to the natural state of the public land and no changes to the way in which the public can use or access it.[74] In Miles there was consultation undertaken by the respondent as required under the Act when it considered whether to approve or refuse the use.[75] Information before the tribunal included consultation with utility providers and other consultation, which the tribunal found did not raise any specific objections.[76] The tribunal found that the works had in effect “widened the traversable path for pedestrians by levelling the ground adjacent to a concrete footpath.[77] Maintaining a clear line of sight for pedestrians and road users was agreed by the parties to be a legitimate consideration in deciding if the use was to be approved, and the tribunal found that the works did not adversely affect the line of sight.[78] The tribunal was satisfied that approval subject to 29 conditions was the preferable decision – “any affect or risk is minimised by the … conditions”.[79] The conditions covered “Landscape Development”, “Street Tree Protection”, “Pedestrian Access, Line of Sight and/or Obstructions”, “Log Barriers and Bollards”, “Watering System”, “Sound”, “ACT Government Requirements”, “Bushfire Fuel Hazard”, and included conditions about liability, costs and arrangements if the applicants sell their property.[80]
(d)The applicants referred to George v Rockett [1990] HCA 26 (George case) as precedent for understanding what is a “reasonably held belief” under section 34 of the Act. George concerned the issuing of a search warrant linked to potential criminal proceedings. The court found the warrant to be invalid because it was issued by the Magistrate with insufficient information to show that the police had reasonable grounds for believing that the search warrant if executed successfully would find evidence about an offence. The court stated that a belief is an
inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds [for the inclination to believe] … may … leave something to surmise or conjecture.[81]
It further stated that “reasonable grounds” for a belief requires “the existence of facts which are sufficient to induce [a belief] in a reasonable person”.[82]
What are the preferable decisions for the three Directions
[67] John Pappas v Transport Canberra and City Services [unreported, ACAT, 23 September 2021] at [17]
[68] Alcock at [2]-[3]
[69] Alcock at [102]
[70] Alcock at [69]-[83]
[71] Alcock at [82]-[83]
[72] Alcock at [83]
[73] Miles at [43], [45]-[50]
[74] Miles at [49]
[75] Miles at [16], [69]-[71]
[76] Miles at [16]
[77] Miles at [14]
[78] Miles at [26]
[79] Miles at [53]
[80] Miles, Annexure 1
[81] George v Rockett [1990] HCA 26 at [14]
[82] George v Rockett at [8]
Regarding Directions 1 and 2, the Tribunal was faced with significant gaps in evidence as explained below.
Like the tribunal in Alcock, in this case the Tribunal was engaged in a review of Directions based on unauthorised works. Given the applicants made no application to have the plants and objects permitted, there was no consultation as may occur under section 53 of the Act. Therefore, the Tribunal did not have the advantage of information from a consultation process to inform its decisions in this case. Such information would have been also important to inform any conditions that should be imposed on the applicants were the Tribunal to overturn or amend the decisions. The tribunal in Alcock faced a similar challenge and correctly stated that the tribunal cannot comply with the consultation requirements under the Act.[83]
[83] Alcock at [98]-[102]
The nature of the use in this case, on the applicants’ evidence, involves the public accessing the public land which has many obstacles placed there by the applicants including a retaining wall, and also involves uninvited children playing on the applicants’ swings. Adequate information relevant to determining risk management of these uses and liability for these uses is not before the Tribunal. If the applicants had applied for a permit, the Act has various provisions that would have allowed detailed consideration and resolution of these central issues, including sections 49, 50 and 55. Similar to the consultation requirements, the Tribunal is not able to undertake what is required under the Act to resolve risk and liability issues in this case.
The absence of information from consultations and about risk management distinguishes this case from Miles. In Miles the occupier had sought a permit, so the tribunal had the advantage of the results of consultation and risk assessment. The results of consultation available to the tribunal in Miles included views from utility providers and some neighbours, and none of those consulted raised significant or specific objections.[84] This information was critical in the tribunal’s decision in Miles to permit the use by the occupier and to craft conditions to be imposed on the applicant.[85]
Plant Removal Direction
[84] Miles at [16]
[85] Miles at [69]-[71]
Regarding the Plant Removal Direction, the Tribunal finds as follows.
The Tribunal confirms the decision set out in the Direction issued to Ms Babic and finds that it is the preferable decision.
The camellia hedge is on the public land. Unless the respondent permits the hedge under the Act, it is unauthorised. There has been no application by the applicants submitted or granted by the respondent for it to be permitted under the Act. The Act allows the respondent to issue a Direction if there is a reasonably held belief that “a tree or other plant endangers the safety of anyone on public unleased land”, and the Direction is issued to the “occupier of the land on which the tree or other plant is growing”.[86]
[86] Public Unleased Land Act 2013, section 34
The Tribunal accepts the submissions and related evidence of the respondent on this issue. In particular, the hedge is not consistent with the Guidelines. The camellia plant is not a recommended plant, and the evidence demonstrates sound reasons for this being the case – its height is already over the allowed height of 50cm, and its width already narrows the space available to the public between it and the road. The Tribunal agrees with the respondent that if allowed to remain it will create “unreasonable and unnecessary risks and costs to the Respondent by having to monitor and constantly survey … for compliance, and to issue a direction … every time [it] is non-compliant”.[87]
[87] Further and Final Submissions for the Respondent, dated 13 January 2023 at [16]
Further, the required clearances under the Guidelines are not met and the non-compliance with the clearances adversely impacts safe access of users. The hedge has been measured to be less than 1.5m from the kerb when its width is taken into account.[88] Even if the Tribunal were to accept the applicants’ contention that the whole hedge at all times to date has been 1.5m from the kerb, the hedge will grow wider over time, this measurement includes a mulched garden bed which can be difficult to traverse, and it is measured at ground-level but even the applicants’ photos attached to their applications show some of the plants due to their width already inhibit 1.5m access above ground level.[89] In any case, the respondent’s photos show that the street sign limits the width of the area between the hedge and the kerb at one point to less than 1.5m.[90] In addition, the hedge does not meet the clearance required of a corner block being 6 metres from the road intersection.[91]
[88] Diagrams 1 and 2, Exhibit R2
[89] T-Doc 2 and 3, pages T25-T28
[90] Figure 7, Exhibit R1
[91] Guidelines, Figure 7, T-Doc 18, pages T122-T123; Diagrams 1 and 2, Exhibit R2 as amended as amended by Annexure A of Respondents Further and Final Submissions dated 13 January 2023 at [15]
The non-compliance with clearances in general, particularly for a corner block, adversely impacts lines of sight between users, including between pedestrians and vehicles. The Tribunal regards the non-compliance of the hedge with clearance requirements as a significant safety issue. This view is supported by Miles, where maintaining safe lines of sight was acknowledged to be a significant safety factor. Emphasis is given to the importance of lines of sight in the Explanatory Statement and the Act – the Explanatory Statement provides one example of where a Plant Removal Direction might be made, being where the safety of a user of the public land is endangered because the plant obstructs the vision of drivers on a public road,[92] which is then reflected in the example in section 34(1) of the Act which says “tree obstructing vision of drivers on public road”.
[92] Explanatory Statement, Public Unleased Land Bill 2012, page 11
The Tribunal agrees with the respondent that the public includes all users, not just able-bodied pedestrians and pram users, and experienced cyclists, but also those who may not be so agile including less-able bodied pedestrians and pram users, child and learner riders, and persons in mobility scooters. Whether the public largely choose to walk on the road rather than the nature strip is not determinative of the issue. The Guidelines make it clear that “[t]he public is entitled to use nature strips” which provide “vital transport corridors for pedestrians and cyclists” and it is “important that [they] are maintained and accessible for pedestrian use”.[93]
[93] Guidelines, T-Doc 18, page T107
Even if some of the hedge is removed, as the applicants have proposed, access issues remain for some users of the nature strip. Also, the hedge will still create a psychological barrier and users of the nature strip may still think they must walk on the road. The psychological barrier for users of the nature strip is further reinforced because of the objects placed on the nature strip that are the subject of Direction 2.
The best evidence of the location of utilities is that provided by the respondent.[94] The evidence is that some of the utility services are very near or at the base of the hedge. The respondent contended that the hedge does interfere with and/or obstruct access to the utility services.[95] The applicants deny this. The difficulty with the applicants’ claim is that they have never applied to have the hedge approved, so the views of the utility providers are not before the Tribunal to inform this issue. This distinguishes the case from Miles where the views of utility providers were sought as part of the statutory consultation process undertaken by the respondent and they raised no objections. In the absence of specific advice from the utility providers that they raise no objection, given the proximity of utilities to the hedge (and fence) the Tribunal finds that the hedge does interfere with and/or obstruct access to the utility services due to its location, which is a further safety issue relevant to the Direction.
[94] Further and Final Submissions for the Respondent, dated 13 January 2023, Annexure B, Commence Communications Pty Ltd
[95] Further and Final Submissions for the Respondent, dated 13 January 2023 at [21]-[26]
The Tribunal agrees with the tribunal in Pappas – if other occupiers are using other public land in a non-compliant, unauthorised manner as the applicant’s claim, this is an enforcement issue, and it does not change the findings set out above.
The test for a ‘reasonably held belief’ as set out in George is there must be the existence of facts which are sufficient to induce a belief in a reasonable person. The Tribunal stands in the shoes of the decision-maker, the respondent, and based on the findings set out above it finds that there is a ‘reasonably held belief’ that the hedge “endangers the safety of anyone on public unleased land”.[96]
[96] Public Unleased Land Act 2013, section 34
The applicants contended that the Plant Removal Direction Notice was erroneous and therefore invalid. The Tribunal finds that the Plant Direction Notice complies with section 34 and agrees with the respondent that all necessary information is adequately set out.[97] The Tribunal finds that the Plant Direction Notice is correctly directed to the occupier of the land on which the plant is growing. There is not a definition of ‘occupier’ in the Act for the purposes of section 34; the Tribunal agrees with the respondent that the applicants meet the ordinary meaning of ‘occupier’ in that they individually and together have taken control of the public land by establishing the hedge.[98] There is no requirement that a Plant Removal Direction be issued to each and every occupier of the public land that the plant is on – to do so would place an unreasonable burden on the respondent given the difficulty of exhaustively determining all occupiers. It is sufficient for the Direction to be issued to an occupier, and the Direction was directed to Ms Babic who is an occupier.
(a) Objects Removal Direction
[97] Further and Final Submissions for the Respondent, dated 13 January 2023 at [13]
[98] Further and Final Submissions for the Respondent, dated 13 January 2023 at [6]-[12]
Regarding the Objects Removal Direction, the Tribunal finds as follows.
The Tribunal confirms the decision set out in the Objects Removal Direction issued to Ms Babic and finds that it is the preferable decision.
The Act allows the respondent to issue a Direction for removal of an object when there is unauthorised use of public unleased land by placing an object there under section 98; in this case any use by the applicants is unauthorised. ‘Use’ under section 41 is defined to be that which “excludes some or all members of the public”.
The main issue was whether the use of the nature strip “excludes some or all members of the public”.[99] The Tribunal accepts the submissions and related evidence of the respondent on this issue. The objects subject to the direction as a whole and individually exclude some members of the public. In particular, the Tribunal finds that the fence is not a temporary fence as required under the Guidelines. Rather, it is the sort of fence that is commonly used as permanent fencing on common boundaries and the Tribunal finds that it is intended by the applicants to be not temporary. In enclosing the public land occupied by the applicants it presents a physical barrier to accessing the public land and a psychological barrier in that the public is likely to conclude that the public land is not public land. These barriers to the public entering and using the public land are reinforced by the hedge which is planted adjacent to the fence.
[99] Public Unleased Land Act 2013, section 41
It is true, as the applicants stated, that someone could physically enter the public land occupied by the applicants. Indeed, Ms Babic stated that children enter uninvited and play on the applicants’ swing apparatus. However, some members of the public would not be able to navigate a path to the public land occupied by the applicants due to barriers the objects (and hedge) present. Some members of the public will be deterred due to the strong impression created by the applicants’ fencing and objects (and hedge) that they are not legally allowed to enter because it is not public land. The retaining wall and artificial lawn are in keeping with the applicants’ landscaping which reinforces the latter impression. Even though the concrete strip has been removed and the applicants state they will remove part of the fence and the hedge, this does not overcome the barriers the remaining objects present to public use.
The applicants contended that they were not ‘using’ the public land and presented a legal argument about the definition of ‘use’ to support this contention. The Tribunal finds that the meaning of ‘use’ for the purposes of section 98 is as defined in section 41. Section 41 is referred to in the note to section 98 of the Act, and while a note is not part of the Act it is a guide to how ‘use’ is to be interpreted in section 98. Section 41 states that ‘use’ is defined as follows “in this Part”: “a person uses public unleased land if the person carries on an activity on the public unleased land in a way that excludes some or all members of the public from the place”. While section 98 is in a different part to section 41, it is logical that the use under section 98, an enforcement provision, is within the definition of use under the permit provisions including section 41.
The applicants contended that section 41 involves a definition of ‘use’ that requires active activities on the public land, and they contended that their objects are merely passive decorative objects, not activities. The Tribunal does not agree with this interpretation of section 41. The notes to section 41 of the Act indicate that an activity includes the (mere) placing of objects on public land, for example, “placing tables and chairs on the footpath …”. Also, section 50 of the Act about the suitability of an “activity” for a permit includes suitability information about “placing an object on public unleased land” including the “nature of the object”, its size, its “intended use”, any construction work required, and any risks to the public. The Explanatory Statement supports the Tribunal’s interpretation of section 41. It refers to ‘uses or activities’ under section 41 which indicates that ‘uses’ is not the same as ‘activities’.[100]
[100] Explanatory Statement, Public Unleased Land Bill 2012, page 3
Nevertheless, in this case the objects all contribute to an active use of the public land. While the Explanatory Statement states that the Act is not intended to capture “transient or incidental use”,[101] this is not the use involved in this case. In this case the applicants’ objects involve more than incidental use or indeed mere placement. They have required earthworks and concreting. Further, the applicants’ objects allow the applicants to engage in ongoing activities on the public land for their enjoyment as if it is part of their property for example, to play on their swings. On the applicants’ evidence, the public may access the public land which has many obstacles placed there by the applicants including a retaining wall and uninvited children can and do play on the applicants’ swings.
[101] Explanatory Statement, Public Unleased Land Bill 2012, page 4
Even if some of the objects can be picked up and removed as the applicants claim, this does not mean they involve a mere passive use. The objects accumulatively result in a significant use of the land. Similar to the Alcock case and distinguishing the Miles case, in this case the objects amount to a substantial change to the natural state of the public land and significant changes to the way in which the public can use or access it.[102] The retaining wall has significantly altered the physical nature of the public land – it now requires a member of the public to navigate a step up or step down in order to traverse the public land and not all members of the public will be able to do this. There is no evidence that it was approved as part of any development approval, or that removing it will cause a safety issue.
[102] Miles at [45]-[49]
The fact that children do enter to play on the applicants’ swings as stated by Ms Babic, raises issues about risk management and liability if a child hurts themselves. As explained earlier, given there has been no application made by the applicants, there has not been consultation and consideration about what conditions and risk management arrangements should apply to any permitted use. The gap in such critical information raises concerns about overturning the decision and supports a finding that the Objects Removal Direction is the preferable decision.
The applicants contended that the Object Removal Direction Notice was erroneous and therefore invalid. The Tribunal finds that the Object Removal Direction Notice complies with section 98 and agrees with the respondent that all necessary information is adequately set out.[103] The Tribunal finds that it has been correctly given to “a person who uses public unleased land” namely Ms Babic.[104] There is no requirement that the Direction be issued to all persons using the public land – to do so would place an unreasonable burden on the respondent given the difficulty of exhaustively determining all persons using the public land, and it is sufficient for the Direction to be issued to ‘a person’.[105]
(b) Repair Direction
[103] Final Submissions for the Respondent, dated 10 February 2023 at [16]-[17]
[104] Public Unleased Land Act 2013, section 98
[105] Final Submissions for the respondent, dated 10 February 2023 at [15]
Regarding the Repair Direction, the Tribunal finds as follows.
The Tribunal confirms the decision set out in the Repair Direction issued to Ms Babic and finds that it is the preferable decision.
There has been no application by the applicants submitted or granted by the respondent for any damage to the public land, so any damage is unauthorised. The Act allows the respondent to issue a Direction where “a person causes damage … to public unleased land … [and] the damage is not authorised”.[106]
[106] Public Unleased Land Act 2013, section 21
The main contested issue was whether damage has occurred – the applicants contended that the Direction was pre-emptive until the other two Directions were determined, and that in any case the plantings and objects were decorative, and/or passive in their use of the land and/or improved the usability of the land. The Tribunal does not agree with the applicants on this issue. The Tribunal accepts the submissions and related evidence of the respondent on this issue.
The case is similar to that in Alcock, where the tribunal confirmed a repair/removal Direction related to unauthorised works that included a retaining wall, a fence, a strip of concrete, and gardens, and which had necessitated earthmoving works that altered the contours of the land.[107] Similar to Alcock, the Tribunal in this case finds that the hedge and objects have caused damage to the public land in that they impair the value, usefulness or normal function of the public land. This impairment exists even if some of the plants and objects can be easily removed or are reversible. In Alcock, the construction of gardens and installation of structures on the public land were found to be damage for the purposes of the Act because they affected the visual amenity of the public land and also affected the way the public can use the public land, even if they were just sitting on top of the land.[108] Similar to Alcock, in this case the damage is significant in that there has been earthworks to the public land which has physically altered the public land.[109]
[107] Alcock [2016] ACAT 78 at [2]
[108] Alcock at [83]
[109] Alcock at [82]
This case is distinguished from Miles, where the tribunal found that the works had in effect widened the traversable path for pedestrians by levelling the ground adjacent to a concrete footpath.[110] In Miles, maintaining a clear line of sight for pedestrians and road users was agreed by the parties to be a legitimate consideration in deciding if the use was to approved, and the tribunal found that the works did not adversely affect the line of sight.[111] However the findings here are that the works create barriers to accessing the public land and also adversely impact lines of sight.
[110] Miles at [14]
[111] Miles at [26]
The respondent set out what it required by way of repair in the Repair Direction as follows:
All areas where items have been removed from the ground is to be repaired; Make the nature strip even with Nil undulations uniform in appearance; Lightly cultivated soil 25 mm to 80 mm for receiving grass or turf; Lay turf or seed which is tolerant to ACT conditions with care to support establishment of grass.[112]
The Tribunal is satisfied that the latter specific directions about the nature of the repair to be undertaken by the respondents are consistent with the evidence of the damage that the applicants have caused. A series of NearMap images of the applicants’ property and the public land from 2020 to 2022 submitted by the respondent show the changes in the state of the public land over that time, and the NearMaps dated 1 December 2020 and 7 February 2021 show that the public land was grassed and not terraced.[113]
Validity of Notices and Procedural Fairness
[112] Repair Direction dated 9 September 2022, T-Doc 6, pages T74-T77
[113] Further and Final Submissions for the Respondent dated 13 January 2023 at [35], [39]-[47] and annexure C
The initial Directions were amended under section 180 of the Legislation Act 2001 and rule 132 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (Procedures Rules).[114] The Tribunal finds that these amendments were validly made.[115]
[114] T-Docs 4, 5 and 6, pages T68-T77; Submissions for the Respondent dated 1 December 2022, [8]-[10]
[115] Final Submissions for the respondent, dated 10 February 2023 at [5]-[11]
The applicants contended that the Direction Notices were defective and therefore invalid in that incorrect names and addresses were used, various details were not included that the respondent later relied on, and various details were included that the applicants contended bind the respondent. It is true that certain errors in a Notice can cause it to be found to be invalid, being defects that are so critical to the Notice that it results in unfairness. In the case of Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner for ACT Revenue,[116] the Tribunal found a Notice to be invalid because it named an incorrect corporation to be the person it was directed to and the applicant corporation in the proceedings was therefore disadvantaged. However, the Tribunal finds that there are no such defects in the Directions Notices in this case. The Tribunal finds no other defects in the Direction Notices that would lead it to conclude they are invalid.
[116] Highrise Concrete Contractors (Aust) Pty Ltd v Commissioner for ACT Revenue [2014] ACAT 31
The Directions under review were those issued in September 2022, and they are correctly addressed to one of the applicants, Ms Samantha Babic, and are correctly addressed to the applicants’ property (although the Title Search indicates that the applicants’ property also has an address linked to the adjoining street).
The Plant Removal Direction Notice describes the plant to be removed as “Camellia Hedge approximately 1.5 metres from the kerb”, which is a descriptor of the plant, and it does not prevent the respondent from contending as it did that the hedge was less than 1.5m from the kerb.
The Tribunal agrees with the respondent that the Direction Notices did not have to state the entirety of all the bases upon which the respondent has relied on.[117]
[117] Further and Final Submissions for the Respondent dated 13 January 2023 at [13]
The applicants contended that there were errors in the respondent’s process and during the tribunal proceedings that invalidate the Directions. In particular, none of the Directions were directed to Mr Babic by the respondent, and the tribunal ordered that Mr Babic be made an applicant in his absence by Order dated 6 October 2023. Mr Babic never filed any written authority for any person to act for him.
The Tribunal agrees that the respondent could have directed the three Directions to Mr Babic, as well as Ms Babic, given he is a co-owner of the applicants’ property. The Tribunal accepts that Mr Babic is an interested party. The ACAT Act requires the respondent to “take reasonable steps to give written notice … of the decision to any person whose interests are affected by the decision”;[118] however the ACAT Act also states that a “failure to comply … does not affect the validity of the decision”.[119] Similarly, the Procedures Rules require that an interested party be notified of the proceedings;[120] however if the requirements have not been strictly met they state that a “[f]ailure to comply with a procedural requirement … is an irregularity and does not make a proceeding, or a document lodged, step taken or order made in the proceeding, void”.[121]
[118] ACT Civil and Administrative Tribunal Act 2008, section 67A (1)
[119] ACT Civil and Administrative Tribunal Act 2008, section 67A (4)
[120] ACT Civil and Administrative Tribunal Procedures Rules 2020, rule 128
[121] ACT Civil and Administrative Tribunal Procedures Rules 2020, rule 59(1)
It was ordered on 6 October 2022 that Mr Babic be added as a party, namely as an applicant. In the Tribunal’s view this latter Order ensured that Mr Babic who is an interested party knew of and had the option of participating in the tribunal proceedings.[122] While the Procedures Rules state that a person can be added as an applicant “only with the person’s consent”,[123] they also state that “if a direction is inconsistent with these rules … the direction prevails”.[124] The Tribunal is satisfied that while they may have been procedural irregularities in the ACAT proceedings in regard to Mr Babic, importantly the Tribunal is satisfied that Mr Babic had the opportunity to participate in the proceedings. Indeed, during the hearing on 14 December 2022 the Tribunal received communications from Mr Babic through Ms Babic as the hearing proceeded, including listening to an audio recording that he provided during the hearing which was marked as Exhibit A1.[125] Also, during the proceedings in written and oral submissions Ms Babic commonly used the pronoun ‘we’ which indicated to the Tribunal that she was speaking for herself and Mr Babic.
[122] ACT Civil and Administrative Tribunal Act 2008, section 29(5)
[123] ACT Civil and Administrative Tribunal Procedures Rules 2020, rule 39(4)
[124] ACT Civil and Administrative Tribunal Procedures Rules 2020, rule 60(3)
[125] Transcript of proceedings, 14 December 2022, pages 39, 45-48
Due to the Directions never having been issued to Mr Babic the Tribunal can only make orders about Ms Babic, and this is reflected in the Orders.
………………………………..
Senior Member L Beacroft
| Date(s) of hearing: | 14 December 2022 |
| Applicant: | Self-represented |
| Counsel for the Respondent: | Ms S Ng |
| Solicitors for the Respondent: | ACT Government Solicitor |
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