Burns v Yarra Ranges Shire Council
[2014] VSC 447
•16 September 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. 5597 of 2013
IN THE MATTER of r 56 of the Supreme Court (General Civil Procedure) Rules 2005
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IN THE MATTER of s 114 of the Planning and Environment Act 1987
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IN THE MATTER of the certain application held by the Administrative Division Planning and Environment List of the Victorian Civil and Administrative Tribunal at Melbourne on 28 August 2013 wherein YARRA RANGES SHIRE COUNCIL was the Applicant and ROBERT ALAN BURNS was the Respondent
| ROBERT ALAN BURNS | Plaintiff |
| v | |
| YARRA RANGES SHIRE COUNCIL | First Defendant |
| - and - | |
| VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL | Second Defendant |
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JUDGE: | McMillan J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 September 2014 | |
DATE OF JUDGMENT: | 16 September 2014 | |
CASE MAY BE CITED AS: | Burns v Yarra Ranges Shire Council | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 447 | |
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Administrative Law — Review of the decision of the Victorian Civil and Administrative Tribunal — Whether a further adjournment should have been granted — Whether onus of proof on Council to prove permit — Whether plaintiff admitted breach of the planning laws — Planning and Environment Act 1987, s 114
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P J Billings | Patten Robins |
| For the First Defendant | Mr T S Pikusa | Goddard Elliot |
| For the Second Defendant | No appearance |
HER HONOUR:
Introduction
On 5 April 2011, the first defendant (‘the Council’) filed an application for an enforcement order in the Victorian Civil and Administrative Tribunal. That application, brought pursuant to s 114 of the Planning and Environment Act 1987, related to certain earthworks the first defendant required the plaintiff (‘Mr Burns’) to undertake in respect of land situate at 19A Wattle Avenue, Belgrave (‘the property’).
The property is subject to the Yarra Ranges Council Planning Scheme (‘the planning scheme’), is zoned Low Density Residential Zone, and is subject to an Erosion Management Overlay (‘the overlay’), a Bushfire Management Overlay, and a Significant Landscape Overlay. The allegation made in support of the enforcement order sought was that Mr Burns had carried out earthworks on the property without a permit.
Section 44.01 of the planning scheme sets out the requirements under the overlay. Section 44.01-1 provides that a permit is required to construct a building or carry out works, but that this does not apply if a schedule to this overlay specifically states that a permit is not required. Section 4.0 of the schedule to the overlay provides that:
No permit is required to construct or carry out any of the following building or works.
·Earthworks, either separately or as part of a buildings or works proposal, provided;
·No cut or fill greater than 0.6 metres in height or depth is required;
Specifically, it was alleged that Mr Burns constructed batters on his land with fill heights greater than 0.6 metres in height in order to provide a greater area of flat land on his property, and those batters were not constructed in accordance with accepted engineering practice.
Mr Burns’ case is that a batter had been constructed at some time in about the 1970s, pursuant to a planning permit issued by the Shire of Sherbrook, and that a further 30cm of fill had been added to that batter more recently, which being less than 0.6 metres in height is not in breach of the regulation. All permits previously in force under the Town and Country Planning Act 1961 have the same effect and are subject to the same provisions as if they had been issued under the Planning and Environment Act 1987.[1]
[1]Planning and Environment Act 1987, s 208(1).
The interim orders
On 23 April 2012, Senior Member Richards made an interim order by consent (‘the April 2012 orders’), requiring Mr Burns to provide a proposed plan of works to the Council within 14 days. On 11 February 2013, Member Martin made a further interim order by consent (‘the February 2013 orders’), requiring Mr Burns to:
(a)remove all stockpiles and containers from the crest of the slope on the land;
(b)obtain quotes for the construction of a retaining wall and/or the regarding of the batter in relation to the relevant area of the land to reduce the gradient;
(c)procure a meeting between geo-technical experts of behalf of both parties to assess whether the quote for the work is sufficient; and
(d)with the Council, agree a timeframe for the measures to be completed.
At the hearing at which the February 2013 orders were made, Mr Burns represented himself, although Mr Burns’ solicitor was present acting amicus curiae. Mr Burns’ solicitor noted that the construction of a retaining wall was Mr Burns’ idea, and that resolving the dispute was ‘just a matter of working out what that would entail’.
Attached to the orders made at that hearing, Member Martin made the following remarks:
The matter due to be dealt with in the ordinary way as a Short Cases List Hearing on 1 February 2013. However in the days leading up to this hearing, the Respondent Mr Burns requested that the hearing be adjourned. While it is not necessary for the purposes of these interim orders to go into the detail of same, suffice to say that in the end result I accepted that it was appropriate that the formal hearing be adjourned but wished the parties to still attend at the 2.30pm hearing on 1 February 2013 on the basis that it would be treated as a directions hearing.
…
At the very end of the hearing, the parties prepared by hand and signed some suitable consent orders. The interim orders which I have set out above reflect these hand-written signed consent orders, with some suitable minor editing.
I now await the further information from the parties. In particular, I am conscious that this matter is now coming up to a two-year anniversary at the Tribunal, and that Mr Burns has already got behind in the timeframe for resolving this matter. Hence I remind Mr Burns that it is important that this matter now be promptly resolved, that there are limits to the patience of the Council/the Tribunal in resolving this matter and that the question of costs frequently arises where there are protracted delays resolving enforcement matters before the Tribunal.
I reiterate that whilst I am sympathetic at a personal level that Mr Burns has indicated he is under considerable financial stress, this is not in itself a legitimate planning reason to justify failing to comply with planning enforcement proceedings.
The matter is listed for hearing
As the matter did not resolve, on 19 July 2013 Deputy President Gibson ordered that the matter be listed for hearing on 21 August 2013, on an estimate of one day. A number of exchanges occurred on that day relevant to the issues now in dispute between the parties. First, the Deputy President noted that what was being alleged was that earthworks were carried out without a permit, at which Mr Burns interjected, insisting that he did have a permit. As he later explained:
We do say, Madam Deputy President, that we did have a permit in 1975 from the Shire of Sherbrooke whom after the amalgamation of councils became part of the Shire of Yarra Ranges. Plans were lodged with them and were approved by the Shire of Sherbrooke and that is one issue that has not been looked at really.
The Deputy President also warned Mr Burns about the importance of finalising the proceedings, noting:
No further adjournments will be granted and at that hearing the Council must be explicit about the works if there is an enforcement order to be made, a final enforcement order. The responsible authority must be explicit about the works to be undertaken.
Finally, in setting a date for the hearing, the following exchange occurred:
MR BURNS:Unfortunately my counsel had to go to County Court and then out to Dandenong Court and that’s why I am here myself.
DEPUTY PRESIDENT: All right, well, you will be given notice. You need to ensure that you come along to the hearing and whatever you are intending to rely upon will be said on that date. But as I say, there won’t be further adjournments. Can I get an indication? Are there any constraints that anybody has in terms of times in or around the middle of August?
MR BURNS:It was indicated to me by counsel that if we get the matter listed to early September next.
DEPUTY PRESIDENT: No, this matter has gone on for long enough. It will be around the middle of August, in that week probably commencing 19 August.
In her remarks attached to the orders, the Deputy President noted:
This application for an enforcement order has now been on foot for over two years since it was lodged on 8 April 2011. The respondent has had adequate opportunity to reach agreement with the council about appropriate measures to rectify the alleged breaches. No further delays in finalising this matter and making final orders will be countenanced. I will list the matter for a final hearing and no further adjournments are likely to be granted.
The further request for an adjournment
On 9 August 2013, Mr Burns’ solicitor, Mr Murdoch wrote to VCAT requesting an adjournment. This was the first occasion on which Mr Murdoch claimed to be acting as solicitor on the record for Mr Burns, rather than merely acting amicus curiae. In his letter he said:
While conscious of the extensive history of this matter before the tribunal, our client respectfully seeks the indulgence of the tribunal for one final adjournment. Our client is unable to be represented on 21 August [2013], but will appear in person to make application for the adjournment.
We are aware of the tribunal’s intention for the final hearing to proceed on 21 August 2013 and respectfully submit that were this to occur, my client would be grossly prejudiced and could face incurring exorbitant financial burdens as a result of an order made by the tribunal. My client is 70 years of age and in significant financial stress.
We would be grateful if this matter were to be adjourned until after August so that we could assist Mr Burns.
The solicitor for the Council was copied into the letter. Before me, counsel for the Council indicated from the bar table that the consent of the Council had not been sought prior to this letter being sent, and no evidence was produced suggesting that such consent had been sought.
On 14 August 2013 the Registrar of the Administrative Division advised that the request had been refused because the Council did not consent.
The matter was brought on for hearing before Senior Member Byard on 21 August 2013, at which hearing Mr Burns was unrepresented, and the Council represented by counsel. Prior to the substantive hearing, Mr Burns sought an adjournment until the following week. The reasons Mr Burns gave to the Senior Member for seeking an adjournment were:
(a)Mr Burns’ solicitor, Mr Anthony Murdoch, had been called away to Europe for urgent business there and would not be back until 26 August;
(b)Mr Murdoch had notified VCAT that this was the case, including the reason for seeking an adjournment;
(c)If the trial proceeded without Mr Murdoch, Mr Burns would be unrepresented; and
(d)Mr Burns’ expert witness, Mr Antony Zevic, was unavailable as there had been a death in his family, and his report was also unavailable;
The Senior Member enquired whether Mr Murdoch was a member of a firm, and whether anyone else from that firm would have been able to take over the matter. He noted that Mr Murdoch described himself as a Senior Associate, and made the following remarks:
That makes it sound as if he’s not a partner or principal of the firm.
…
If you’re a sole practitioner, you can’t — it would probably read solicitor, or possibly barrister and solicitor, or lawyer. If there’s a firm, and Patten Robins sounds like it may very well be a firm name, and that could be a sole practitioner; it’s more likely to be a partnership, but if you were Mr Murdoch and you were a partner, it is unlikely that your card would say Senior Associate.
Mr Burns conceded that may be the case.
The Council then took the Senior Member through the history of adjournments, in the proceeding, not all of which I have set out, including the fact that the interim orders had not been complied with. By way of submission, the counsel appearing for the Council said to the Senior Member:
There has clearly been a course of conduct by Mr Burns throughout the enforcement application process, and particularly since the end of last year, to simply seek to adjourn this matter on what could probably at best be described as spurious grounds, and a decision to not comply with now two sets of orders that have been made by the Tribunal in respect of what needs to occur from this point on. I should say that on 19 April [2012], when the first round of consent orders were made, Mr Burns was represented by McPherson and Kelly, and did receive legal advice.
The Senior Member declined to make any findings as to whether the previous adjournments had been spurious or otherwise, but refused the adjournment. In refusing the application for adjournment, he noted the following:
(a)As the case had not yet commenced on the merits, another legal representative could have appeared for Mr Burns:
(b)Clear and adequate warnings were given to Mr Burns that no further adjournments would be granted;
(c)The proceeding had been in train for over two years, and while case management considerations were important, if the justice of the case demanded that there had to be an adjournment, he would grant one;
(d)Whether other lawyers at Mr Murdoch’s firm, or another firm, or even a barrister, handled the matter, it was ‘perfectly clear’ that there are other lawyers who could have appeared; and
(e)It is the responsibility of parties to ensure their witnesses are available.
In the reasons attached to the final orders made, the Senior Member explained the reasons for the decision to refuse the adjournment as follows:
Mr Murdoch has given his position as senior associate of the firm rather than principal or partner. That implies to me that there are other lawyers in the firm. In any event, it had been made clear that further adjournments would not be granted. That was made clear in time for someone else at the firm to prepare or another firm to be engaged and/or for a barrister to be briefed. Unavailability of a particular advocate is not normally regarded as sufficient justification for an adjournment, particularly for a case that has not commenced as to its merits, and all the more so where there has been a long history including previous adjournments, warnings that further adjournments would not be countenanced and opposition by the opposing party. Proceedings cannot be allowed to drag on forever, and unwarranted adjournments should not be granted.
The substantive hearing
Senior Member Byard subsequently heard the matter, reserved his decision, and on 28 August 2013 granted the enforcement order sought.
In opposing the adjournment, counsel appearing for the Council noted that:
The Council is of the view that liability for the works has now been admitted by Mr Burns by way of two sets of consent minutes of order recorded by the Tribunal, and it is now a question of what rectification works need to be undertaken.
Mr Burns did not respond to that submission at that stage. The Council’s position was repeated in substantive submissions, where the following exchange occurred:
SENIOR MEMBER: Any works require a permit, unless a schedule to the overlay says that you didn’t
[MR PIKUSA]:[2] Correct. In clause 4.0 of that schedule, sir —
[2]Although the transcript provided refers to a ‘Mr Keating’, Mr Murdoch deposed and I accept that that was recorded in error, and that in fact Mr Pikusa appeared as counsel for the Council.
SENIOR MEMBER: No permit is required to construct or carry out certain things.
[MR PIKUSA]: And the first dot point, ‘earthworks either separately or as part of the building or works proposed, provided no cut or fill greater than 0.6 metres in height or depth is required. We say, well, that’s clearly been exceeded with the batter and the work that’s been undertaken.
SENIOR MEMBER: So this, the fill, the surface of which provides the batter, the fill is more than 0.6 of a metre in height or depth.
[MR PIKUSA]: Yes.
SENIOR MEMBER: Therefore a permit was required and there is no permit.
[MR PIKUSA]: Yes.
MR BURNS:I should mention that we had a permit in 1974 or 1975 from the Shire of Sherbrooke. They came up, they inspected and gave a permit for —
SENIOR MEMBER: For what, though?
MR BURNS:For the cut and fill that were done then. Only since then has it been bits and pieces extended.
[MR PIKUSA]: Well that may be, sir, but orders by consent have been made, and the question of whether or not liability is an issue here is put to one side. The fact is, this order has been made by consent.
…
SENIOR MEMBER: Well, in any event, Mr Burns admits that there’s been further fill carried out since the Shire of Sherbrooke, was it —
MR BURNS:Yes.
SENIOR MEMBER: — Whatever permit they gave all that time ago. I don’t have that permit before me.
In closing, Mr Burns reiterated that he relied on the existence of a permit granted in 1975 by the Shire of Sherbrooke authorising the work he undertook.
In his reasons attached to the order, the Senior Member said:
Mr Burns, the respondent who appeared in person, claims that a planning permit was obtained in 1974 or 1975 in relation to the land from the previous responsible authority, namely, the Council of the Shire of Sherbrooke. The Shire of Sherbrooke was the relevant municipality prior to municipal amalgamations that occurred in Victoria in the early 1990s. No copy of any such permit or any endorsed plans or other specifications in relation to any such permit were produced in evidence. Accordingly, I have no means of determining whether, and if so to what extent, any earthworks were authorised by the previous responsible authority. However, it is admitted by Mr Burns that the earthworks complained of have been carried out without planning permission. That amounts to a contravention of the planning laws providing the basis for making an enforcement order. That proposition is admitted and was not otherwise challenged in the course of the hearing.
The Supreme Court proceeding
On 28 October 2013, Mr Burns filed an originating motion and summons in this Court, seeking that the Senior Member’s decision be quashed, and the application for an enforcement order be refused or be reheard before a differently constituted Tribunal, as well as costs of this application and of the VCAT proceeding. The first ground said to constitute an error was in essence that by denying the adjournment, the Senior Member denied Mr Burns procedural fairness, because it forced him to appear without legal representation and denied him the opportunity to call his expert witness.[3] The further error, related to the denial of procedural fairness, was said to be that the Senior Member erred in finding that the Council had met the onus of proof that the works were conducted without a planning permit.
[3]The grounds included a ground, denoted ground (d), attacking the Senior Member’s decision to prefer the evidence of one expert witness over another, on which Mr Burns indicated at trial he no longer relied.
On 22 November 2013, Derham AsJ made orders by consent staying the enforcement order of the Senior Member pending the outcome of this proceeding. Owing to the late filing of material, Daly AsJ extended the timetable for the filing of material by order made on 13 May 2014, and the matter came on for hearing before me on 10 September 2014.
Mr Burns relied on an affidavit of Mr Anthony Norman Murdoch, his solicitor, sworn 12 May 2014, an affidavit of Mr Antony Zebisch, his geo-technical expert, sworn 19 August 2014, and a further affidavit of Mr Anthony Norman Murdoch in reply, sworn 10 September 2014, filed with leave at the outset of the trial. The defendant relied on an affidavit of Mr Justin Eades, formerly an Environment and Compliance Officer at the Council, sworn 17 June 2014. No objections were taken in respect of the affidavit material.
The procedural fairness ground
Mr Burns’ submissions
Mr Burns submitted that, as a model litigant, the Council ought have informed the Senior Member that the Council was aware that Mr Burns’ solicitor was overseas and would be available only a few short days thereafter. It was submitted that if the Senior Member had been informed that Mr Burns’ solicitor was overseas and would be available on or after 25 August 2013, there would have been no reason that the Senior Member would not have granted the adjournment, and indeed the Senior Member, in the circumstances, should have granted the adjournment.
Mr Burns further submitted that the Senior Member refused the adjournment in part because the Senior Member drew the inference that Mr Burns’ solicitor was not a sole practitioner, when in fact that was not the case. Mr Murdoch deposed that:
I am a sole practitioner and principal of the firm Patten Robins Lawyers. At that time I was the only lawyer at that firm, and I employed legal staff from time to time. I note that the Senior Member could have taken judicial notice of the constitution of my practice by making due inquiries with the Law Institute and/or contacting my firm and/or contacting me personally by telephone, albeit that I was overseas.
Further to the above, my trip overseas to Europe was a holiday with my fiancé and had been planned long before my firm had been engaged by the plaintiff. Insofar as the plaintiff appears to have thought that the trip was for work purposes, he is mistaken. Ms Whitaker (the solicitor for the first named defendant) did, however, know the purpose of my trip.
Mr Burns also submitted that the fact that he had not complied with the procedural orders requiring him to produce the report of any expert witness on which he wished to rely, was given too much weight by the Senior Member, when in fact it was only one matter that needed to be balanced in the exercise of discretion. He submitted that the Council had been late in complying with the same orders, and that should also have been taken into account, although appeared to resile from that submission even as he made it.
Mr Burns’ final submission on this point was that these two errors compounded the situation, and that in an application for an adjournment, over which the Senior Member had a discretion, all these factors have to be balanced, and if there is no obvious prejudice to the Council and no real reason not to set the matter down at a date convenient to all parties, then it would be unreasonable not to do so.
The Council’s submissions
The Council submitted that the adjournment was refused primarily because of the long procedural history of the matter and that, applying modern case management principles, that procedural history was a matter that the Tribunal was not only entitled but in fact obliged to take into account. Mr Burns was on notice that the matter would be heard and determined, and understood this to be the case.
The Council also submitted that in essence, there was limited material available to the Senior Member to determine the adjournment application, and that the Tribunal acted properly on the material before it in refusing the application. To the extent that Mr Burns’ complaint is that there were factors relevant to the Senior Member’s discretion that were not brought to his attention, it was Mr Burns’ responsibility to bring forward all matters on which he wished to rely, and he was given adequate opportunities to do so.
From the bar table, it was said that the letter from Mr Burns’ solicitor requesting an adjournment was made without notice to the Council. The submission of the Council on this point was that the usual process at VCAT is that a party seeking an adjournment first approaches the other side seeking consent, and then seeks the adjournment, either with that consent or without it. Mr Burns in reply submitted that, contrary to the assertion from the bar table, the letter requesting an adjournment was expressly copied in to the Council’s solicitor, and that by copying the request to the Council, Mr Burns had effectively sought the Council’s consent.
Conclusions in respect of the procedural fairness ground
Under questioning as to whether tribunal members were required to make further enquiries into the position of self-represented litigants where adjournments were sought, counsel for Mr Burns submitted that the ‘obvious retort’ was that, if he were in the position of a judicial or quasi-judicial officer, he would have made the enquiry. That is not to the point. The fact that counsel for Mr Burns might exercise the discretion differently, or that I might exercise the discretion differently, does not demonstrate any legal error.
On the availability or otherwise of Mr Murdoch, I would note that Mr Murdoch deposed that the date of the hearing was ‘unsuitable to this firm and plaintiff’, a deposition I do not understand. It was Mr Murdoch for whom the date was unsuitable, and it is confusing to talk about the date being inconvenient to his firm if, at the time, his firm comprised solely of himself.
On the issue of whether the consent of the Council was sought prior to seeking the adjournment, I would only say this. It is far more sensible that practitioners discuss these matters between themselves before approaching VCAT (or indeed, this Court) to seek an adjournment; however, this minor issue in dispute does not advance the case of either party. VCAT was on notice that Mr Burns wished to adjourn the matter, the Council did not consent to the adjournment, and Mr Burns was on notice that VCAT was not likely to grant the adjournment. The letter seeking the adjournment did not explain why Mr Murdoch would be unavailable, or why it was necessary that he personally appear for Mr Burns.
I do not accept Mr Burns’ submission that the Senior Member was not properly informed in determining the adjournment application. He was told that Mr Burns’ lawyer was unavailable, and the reason for that unavailability is entirely irrelevant. He considered that either another lawyer at the firm, or another firm, or a barrister, could have appeared for Mr Burns. Given Mr Murdoch had only been the solicitor on the record for a short time, and that no substantive hearing had occurred, there was no prejudice in Mr Burns being represented by another legal practitioner. Mr Murdoch, knowing that the Tribunal had warned Mr Burns that no further adjournments would be granted, and knowing that his written application for an adjournment had been refused, was in a position to arrange alternative representation for Mr Burns. Mr Burns himself could have arranged alternative representation.
The Senior Member consciously and expressly weighed up the disadvantages to Mr Burns, any prejudice that might be suffered, and the significant case management considerations relevant to this case,[4] including the fact that the matter had been on foot for over two years, there had been numerous adjournments, and Mr Burns had been warned that no further adjournments would be granted. That was an entirely proper and appropriate manner to exercise his discretion.
[4]See generally Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
I would add to that conclusion that judicial and quasi-judicial offers are not and cannot be mind readers, and it is for parties to put their cases as they see fit, including providing any material on which they wish to rely. Although self-represented litigants are necessarily afforded some leeway, tribunal members cannot actively assist in preparing or furthering their cases. Where litigants, although self-represented, have had the benefit of ongoing legal assistance, the obligation to prepare their cases properly rests with their legal advisors, not with tribunal members.
There was no lack of procedural fairness afforded to Mr Burns, and no error of law has been demonstrated. That ground of appeal is dismissed.
The onus of proof ground
Mr Burns’ submissions
Mr Burns submitted that there was an onus on the Council as applicant for an enforcement order to prove that the works had been carried out without a permit. Mr Burns’ case was that the original works had been carried out under the permit obtained from the Shire of Sherbrook, and that it was for the Council to prove that they had not been carried out under a permit. Insofar as the Council claimed against the later 30cm of fill added, Mr Burns’ case is that no enforcement order could have been brought, because a 30cm addition does not breach the Erosion Management Overlay.
Mr Burns’ position in respect of the interim orders made by consent was that litigants are entitled to negotiate consent orders to resolve issues without admitting liability. He referred to these orders being ‘mere consent orders’ as opposed to ‘consent orders’ in a substantive sense. He referred to the affidavit of Mr Murdoch, where Mr Murdoch deposed that the February 2013 orders had been made by consent without admitting liability:
Ms Whitaker and I came to an agreement that perhaps orders could be made by VCAT to resolve the issue, which I suggested might require the Plaintiff to perform some earthworks to satisfy the first named Defendant in settlement, without accepting fault and/or without acceptance of the claim and/or without agreeing with the particulars in support of the enforcement order sought.
Mr Murdoch did not refer to the April 2012 orders or the basis on which they had been made. At the making of the April 2012 orders, Mr Burns was represented by McPherson and Kelly. At the making of the February 2013 orders, Mr Murdoch did not actually represent Mr Burns, but described himself as acting amicus curiae, an unusual arrangement on which I make no further comment.
Mr Burns submitted that, far from being an admission of liability, the orders by consent do not express in unequivocal terms that he has admitted liability. His submission was that, whether the consent orders are held ‘upside down, sideways or any other way’, there is nothing in them that suggests that he has absolved the Council from their onus to prove liability.
Mr Burns further submitted that, if he had made any admissions, the admission was that the 30cm addition had been made without a permit, and that as a 30cm addition does not require a permit, that was not an admission relevant to the decision by the Senior Member to grant enforcement orders.
In submissions in reply, Mr Burns submitted that it is an offence under s 126 of the Planning and Environment Act 1987 to carry out work without a permit, and that under s 140(2) of the Evidence Act 2008 the Senior Member should have taken that fact into account in determining that the Council had proved its case.
The Council’s submissions
The Council submitted that the characterisation by Mr Burns of the consent orders as procedural orders that could not amount to an admission of any kind was inaccurate. On two occasions, orders were made by consent between the parties in respect of certain works that needed to be undertaken on the site. On the first occasion, in April 2012, Mr Burns (who was legally represented at the time), agreed to undertake works. From that point, the only remaining contest between the parties was not whether Mr Burns was liable to an enforcement order, but the nature and extent of those works. The contested issues were, if the fill was not to be removed, what the appropriate mechanical steps to be undertaken would be to ensure the property was safe and compliant with the relevant regulations.
The Council submitted that it would be wholly inconsistent for Mr Burns to agree to undertake rectification works, but refuse to accept that he was liable to be ordered to undertake those works. There was no annotation on the orders, nor was it suggested at the hearing to either member who made the orders, that the orders were being made subject to a reservation as to admissions of liability. The only evidence that this is so is the assertion of Mr Murdoch, made for the first time in his affidavit in support of this appeal.
The Council relied on R D Werner & Co Inc v Baily Aluminium Products Pty Ltd (‘Werner’),[5] to the effect that an agreement to seek consent orders constitutes a contract between the parties, only able to be altered by further agreement or further order. In that case, on an appeal from this Court,[6] Ryan J in the Federal Court made a consent order to the effect that the appellant was to pay $20,000 into Court as security for costs of an appeal. An application was made to Northrop J to vary the order such that a letter of credit could take the place of the security, and time be extended. Northrop J held that, as the consent order gave effect to a contract between the parties, his Honour had no power to vary the order. That decision was appealed to the Federal Court of Appeal, where Woodward and Foster JJ held that, in the case of interlocutory orders made by consent, the Court retained an inherent power to vary the orders, unless the parties by express words agreed not to seek such a variation.[7] Mr Burns, in reply, doubted the authority of Werner on the question in dispute.
[5](1988) 80 ALR 134.
[6]Werner predates the decision of the High Court in Re Wakim, Ex parte McNally (1999) 198 CLR 511, disallowing the cross-vesting regime in place at that time.
[7]R D Werner & Co Inc v Baily Aluminium Products Pty Ltd (1988) 80 ALR 134, 137–138, 144; Jenkinson J concurring at 146.
Conclusions in respect of the onus of proof ground
Werner is authority that consent orders can constitute contractual agreements, and that where they relate to interlocutory orders the Court (or the Tribunal) retains an inherent power to control its own proceedings. To the extent that the Council’s submission, relying on Werner, is that Mr Burns contractually agreed with the Council that he was liable, I am not satisfied that is the case.
An analogy was put to counsel for Mr Burns concerning pleadings. If the allegation by the Council is that the work was conducted without a permit, and the defence pleaded that in fact there was a permit, it would ordinarily be for the defence to establish that fact. Counsel for Mr Burns’ case was that, notwithstanding the existence of a permit might have been pleaded in the defence, it remains the Council’s obligation to prove that there was no such permit. No authority was referred to by counsel on this point. As a question of fact, it seems problematic to me that the Council could be obliged to produce evidence that there is no permit, because that evidence would be that there is no permit. If Mr Burns’ defence is that he was entitled to undertake the works, under the pleaded permit, then it is for him to produce the permit, or to seek discovery from the Council for any records of permits previously granted.
In any case, I consider that the Senior Member was correct to decide that issue on the basis that a contravention of the planning laws was admitted by the signing of consent orders. Mr Burns was legally represented when the April 2012 orders were made, and was assisted by Mr Murdoch when the February 2013 orders were made. It makes a mockery of the dispute resolution process to seek to contest liability having agreed on two previous occasions to orders that the works be rectified. If, as was suggested, he wished to rectify the property in an attempt to appease the Council and settle the proceeding, that could have been done by private agreement with the Council, which does not require an order, or else by expressly notifying the Tribunal, and most likely by expressly noting in the orders, that the orders were made without admitting a contravention.
The Council made their position clear at the hearing that the contravention had been admitted, and the evidence led and discussion at the hearing concerned not whether there had been a contravention, but the content of the appropriate enforcement order. At each of the previous hearings, Mr Burns, and the various legal practitioners either acting for him or ‘assisting’ him, did not seek to reserve the question of liability in agreeing to interim orders. Although Mr Murdoch asserted in his affidavit that he had reserved the position in agreeing the orders with the Council’s solicitor, no documentary evidence was produced to that effect, and I do not accept his evidence.[8] It is wholly unsatisfactory for parties to conduct any form of litigation changing their position with respect to the issues in dispute on a whim.
[8]Quite apart from the difficulty Mr Murdoch faces that he was not at that time acting for Mr Burns.
I also reject the submission, first made in reply submissions, that the Briginshaw principles,[9] as contained in s 140(2) of the Evidence Act 2008, relevantly bear on this question. If the issue of liability remained in dispute, then those principles may have been relevant, although they relate primarily to the drawing of inferences and could not have assisted Mr Burns in circumstances where no evidence whatsoever was produced to substantiate his claim that the original earthworks were conducted under a planning permit granted in or around 1975. But given the Senior Member found the issue of liability was admitted, the Briginshaw principles could not assist Mr Burns, quite apart from the fact that no such argument was raised when the case was before the Tribunal.
[9]Briginshaw v Briginshaw (1938) 60 CLR 336.
I am satisfied that the Senior Member did not err in finding that Mr Burns had contravened the planning laws.
Conclusion and orders
Both substantive grounds of review should be dismissed. I shall hear the parties as to the form of order and as to costs.
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