Commisso and City of Gosnells and Anor
[2006] WASAT 247
•24 AUGUST 2006
COMMISSO and CITY OF GOSNELLS & ANOR [2006] WASAT 247
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 247 | |
| TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) | |||
| Case No: | DR:183/2004 | 20, 21 AND 23 MARCH 2006 | |
| Coram: | MR P McNAB (MEMBER) | 24/08/06 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed and report with recommendations made | ||
| B | |||
| PDF Version |
| Parties: | SARA COMMISSO CITY OF GOSNELLS ALAN BERTRAM GIBBS |
Catchwords: | Town planning Local government Ministerial referral of representations to Tribunal for report and recommendations Referral to be treated as a review Allegations of non-enforcement of town planning scheme by respondent local government Extensive but uncertain non-conforming use rights of neighbour of the applicant/complainant Local government and Minister had recognised various rights Applicant made extensive complaints about the use of the land and did not recognise previous existing rights Applicant also complained of noise, vibration and other matters not to do with land use but consequences thereof Potential private action in nuisance discussed Applicant's dispute longstanding over 20 years Applicant failed to show that respondent did not enforce scheme Tribunal found respondent's conduct reasonable in the circumstances Application for review dismissed Report to Minister accordingly |
Legislation: | City of Gosnells Town Planning Scheme No 1 City of Gosnells Town Planning Scheme No 6 Planning and Development Act 1928 (WA) s 211 Town Planning and Development Act 1928 (WA) s 18 |
Case References: | Commisso and City of Gosnells & Anor [2005] WASAT 61 Hay v State of New South Wales (Police) [2006] NSWADT 13 Nil |
Orders | 1. So far as the matter referred to the Tribunal may be characterised as a review it is dismissed.,2. The question of costs is reserved. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA) CITATION : COMMISSO and CITY OF GOSNELLS & ANOR [2006] WASAT 247 MEMBER : MR P McNAB (MEMBER) HEARD : 20, 21 AND 23 MARCH 2006 DELIVERED : 24 AUGUST 2006 FILE NO/S : DR 183 of 2004 BETWEEN : SARA COMMISSO
- Applicant
AND
CITY OF GOSNELLS
First Respondent
ALAN BERTRAM GIBBS
Second Respondent
Catchwords:
Town planning Local government Ministerial referral of representations to Tribunal for report and recommendations Referral to be treated as a review - Allegations of non-enforcement of town planning scheme by respondent local government - Extensive but uncertain non-conforming use rights of neighbour of the applicant/complainant - Local government and Minister had recognised various rights - Applicant made extensive complaints about the use of the land and did not recognise previous existing rights - Applicant also complained of
(Page 2)
noise, vibration and other matters not to do with land use but consequences thereof - Potential private action in nuisance discussed - Applicant's dispute longstanding over 20 years - Applicant failed to show that respondent did not enforce scheme - Tribunal found respondent's conduct reasonable in the circumstances - Application for review dismissed - Report to Minister accordingly
Legislation:
City of Gosnells Town Planning Scheme No 1
City of Gosnells Town Planning Scheme No 6
Planning and Development Act 1928 (WA) s 211
Town Planning and Development Act 1928 (WA) s 18
Result:
Application dismissed and report with recommendations made
Category: B
Representation:
Counsel:
Applicant : Self-represented
First Respondent : Mr SJ Blyth
Second Respondent : Self-represented
Solicitors:
Applicant : Self-represented
First Respondent : Lewis Blyth & Hooper
Second Respondent : Self-represented
Case(s) referred to in decision(s):
Commisso and City of Gosnells & Anor [2005] WASAT 61
Hay v State of New South Wales (Police) [2006] NSWADT 13
(Page 3)
Case(s) also cited:
Nil
(Page 4)
Summary of the Tribunal's decision
1 This matter came to the Tribunal as a Ministerial referral in relation to the enforcement of the City of Gosnell's town planning scheme.
2 The applicant, Mrs Commisso, has been involved in a long-standing (over 20 years), complex dispute with her immediate neighbour, Mr Gibbs, over the use of the neighbour's land. The land is all zoned residential, but Mr Gibbs had extensive, if somewhat uncertain, existing non-conforming use rights.
3 Earlier proceedings in the Tribunal had the effect of confining the matters under review to the question of enforcement of the scheme, and not to the existence or precise extent of those rights (except to the extent necessary to consider such matters).
4 Over the years, Mrs Commisso had complained many times to the City of Gosnells, and also to the responsible Minister, about Mr Gibbs' activities on the land - mostly in relation to the effect on her arising out of the movement and parking of various vehicles and trucks on the neighbour's land.
5 In 2000, the City of Gosnells, after obtaining detailed legal advice from Senior Counsel, effectively drew a "line in the sand" and stated that Mrs Commisso's further complaints would need to be effectively documented and substantiated, and, in effect, confined to alleged breaches of the scheme (and not a continued disputation as to the non-conforming use rights). The City of Gosnells nevertheless continued regular inspections of the subject land.
6 Mrs Commisso had previously supplied extensive video and photographic evidence but stopped doing so after 2000. Later, in connection with these proceedings, she supplied such material. The City of Gosnells was very critical of her conduct in this regard but Mrs Commisso felt that her previous evidence had been ignored. She did, however, continue to complain, mostly by telephone. Mrs Commisso never accepted that Mr Gibbs had the existing use rights that he claimed, rights that the City of Gosnells and the Minister, at least in part, recognised.
(Page 5)
7 Eventually, the Minister referred the matter to the Tribunal for its report and recommendations. Such referrals are, under law, to be treated as if they are applications for a review.
8 The Tribunal, after a lengthy process and review, in effect cleared the City of Gosnells and its officers. Noting that the matter was confined to enforcement of the scheme, the Tribunal concluded that, in the context of the entire matter, none of the City of Gosnell's actions could be considered as either unreasonable or as unjustified.
9 Consequently, the Tribunal dismissed Mrs Commisso's review.
10 A number of ancillary recommendations were made to the Minister.
The scope of the matter before the Tribunal
11 This matter comes before the Tribunal as a report with recommendations to the Minister for Planning and Infrastructure (Minister) under s 18 of the Town Planning and Development Act 1928 (WA) (TPD Act); see now s 211 of the Planning and Development Act 2005 (WA).
12 This statutory provision, set out immediately below in its earlier form, requires the Tribunal to report and make recommendations into certain local government matters referred to the Tribunal by the Minister.
13 Section 18 of the TPD Act provides, so far as is relevant, as follows:
"(2) A person may make representations to the Minister if the person is aggrieved by the failure of a local government to -
(a) enforce effectively the observance of a town planning scheme in force under this Act, or any of the provisions of the scheme;
…
(Page 6)
- (2b) For the purpose of making a report and recommendations on a referral under subsection (2a), Pt V applies, with such modifications as may be necessary, as if the referral were an application for review [to the Tribunal].
(2c) If after holding an inquiry or receiving a report and recommendations from the State Administrative Tribunal, the Minister is satisfied that the local government has failed -
(a) to enforce effectively the observance of a scheme or a provision of a scheme …
the Minister may order the local government to do all things necessary to enforce the observance of the scheme … "
15 The Tribunal should record here that it is doubtful whether Mrs Commisso (applicant), although an active participant in the proceedings, has ever fully appreciated (or if she did, she never accepted) that the proceedings in the Tribunal are narrowly focussed, and then on identified issues and must proceed by law as if the matter were a review in the Tribunal. This meant, amongst other things, that evidence in a comprehensible and relevant form was required from the parties. The Tribunal will return to this matter from time to time below.
The "Originating Document"
16 However, of particular note is the emotional, but possibly incomprehensible - at least to the uninitiated - letter of complaint by the applicant to the Minister dated 24 February 2004 which letter is, in effect, the originating document in these proceedings. It includes the following passage:
(Page 7)
- "My main complaint is in view of the Ministers order in 1999 under section 18.2 [reproduced below] council have failed ... totally and in a very dreadful manner
I have tried to reason with them, by also giving them information however they tried to use it all against me" (Reproduced as written.)
17 Those materials reproduced in the earlier proceedings indicate that the present inquiry has a long history, going back several decades. Some of it is referred to by Senior Member Parry (who referred to these proceedings as the "latest manifestation of the dispute") in earlier proceedings, at [1], as follows:
"Ms Sara Commisso ('the applicant'), the registered proprietor of Lot 37 Lacey Street, Beckenham ('Lot 37'), and Mr Alan Gibbs ('the second respondent'), the registered proprietor of Lot 35 Lacey Street, Beckenham ('Lot 35') and Lot 36 Lacey Street, Beckenham ('Lot 36'), are neighbours who have been embroiled in a series of disputes for approximately 30 years. Their disputes have centred upon various uses to which the second respondent has allegedly put parts of his land. Over the last eight years, these disputes have been given the direct attention of two Ministers of the Crown, the Crown Solicitor's Office, the State Solicitor's Office, the City of Gosnells ('the first respondent'), and a member of the Town Planning Appeal Committee who conducted a lengthy inquiry in 1997 … "
18 In that earlier hearing, concerning the scope of the inquiry, the Tribunal further observed, at [2]:
"A tremendous amount of public resources have obviously been incurred in relation to the neighbours' disputes. And yet, the state of disputation remains. Having recorded and lamented this fact, I now turn to the [procedural] question at hand."
19 The Tribunal, as presently constituted, agrees with those observations. Regrettably, even more public resources (including thousands of pages of transcript and other documents) have now been committed to this longstanding and complex dispute, resources which are unlikely to have resolved it.
(Page 8)
20 The Tribunal in the earlier proceedings made an order "striking out" part of the Ministerial referral: see [40]. No appeal was brought from that decision. That part of the reference, if it had gone ahead, would have effectively reopened the complex historical question of the validity and extent of certain nonconforming use rights of the affected neighbour, Mr Gibbs (second respondent): see further below.
The Ministerial Order
21 What remained for the Tribunal was effectively an inquiry into whether the first respondent has complied with the 1999 Ministerial order made following an earlier inquiry in 1977 (by Mr J Jordan, now a Member of this Tribunal). This is the order referred to by the applicant above. The Ministerial order of 15 July 1999 made under s 18(2) of the TPD Act, as then in force, was as follows:
"Pursuant to the provisions of Section 18(2) of the Town Planning and Development Act, I Graham Kierath MLA, Minister for Planning, having received a representation that the City has failed to effectively enforce the provisions of its Town Planning Scheme No 1, insofar as concerns the uses permitted to be conducted on Pt Lot 36 Lacey Street, Beckenham ('the land') and, having undertaken an inquiry into the matter [that is, the Jordan Inquiry], hereby order the City of Gosnells to exercise its powers under Town Planning Scheme No 1 and under the provisions of the Town Planning and Development Act 1928 (as amended) to enforce the observance of its Scheme to ensure that the use of the land is confined to those activities forming the subject of the recognised nonconforming use.
For the purpose of this Order, I have determined that the recognised nonconforming use of the land involves only:-
'the parking of two (2) prime mover/semitrailer combinations together with carrying out of minor maintenance thereto with no earthmoving equipment being stored or used on the land and no miscellaneous equipment being stored on site'."
(Page 9)
23 Secondly, the recognised non-conforming use rights must be read in the light of senior counsel's opinion referred to below, legal advice which the Minister later found to be "persuasive".
24 Finally, it may be noted that the upper cut-off time limit fixed by the Tribunal for the purposes of this inquiry (and not the subject of any dissent by any of the parties) was fixed at mid-2004.
The current proceedings - case management
25 In the present proceedings, a disproportionate amount of the Tribunal's hearing and administrative time (and then over many months) was spent mainly on three procedural matters: first, in identifying in a structured form the precise allegations by the applicant of non-compliance by the first respondent; and secondly, in having the applicant furnish suitable particulars (and in a comprehensible form) to the first respondent's solicitors of those matters so that they could gather evidence in response, evidence concerning matters that had occurred many years ago, and often to be gathered from persons who had ceased to work for the first respondent.
26 In addition, new or replacement material (although it was difficult to tell what was new), sometimes in the form of audio or video recordings, would "spontaneously" appear and require case management by the Tribunal. Keeping across, managing and identifying such material has tied up substantial resources of the Tribunal.
27 Thirdly, and most importantly, substantial resources of the Tribunal were spent in having the applicant delete references in her material to the very thing ordered to be excised by the Tribunal in the earlier proceedings, namely, questions of the validity and related issues concerning the extent of the nonconforming use rights of the second respondent.
28 Regrettably, even during the final hearing, the applicant claimed that new satellite navigation/aerial photos "produced in May 2005" would prove that the second respondent had no non-conforming use rights.
29 It is convenient to record here that the second respondent, while observing all of the proceedings, took no substantive or material role in the matter. Given the remit of the Tribunal, the issues to be decided and the course of proceedings, no findings are made in relation to the second respondent's rights, interests or conduct.
(Page 10)
Orders of the Tribunal
30 Of the many orders made by the Tribunal in 2005 and 2006 to have the matter ready for hearing, probably the most crucial were the following paragraphs ([4] and [5], from 15 June 2005):
"4. Mrs Commisso must file two copies with the Tribunal and give to the City and Mr Gibbs a copy of her fresh witness statement/chronology and any other proposed evidence (if any), other than the video tape referred to and already filed, on or before close of business on Friday, 15 July 2005. This document is to [be] properly paginated and properly indexed and uniformly copied for the Tribunal and other parties and must, as far as is practicable, attempt to prove each incident or allegation by reference to:
(a) properly identified photograph or other evidence (eg a summary of a video picture) said to prove an alleged incident of a breach of the Town Planning Scheme (including existing nonconforming rights); and
(b) the day of the week, the date and time of the incident and the author of the evidence (eg, the name of the photographer or witness); and
(c) the actual communication and manner of communication (eg a telephone call with date and time of call) with the City (if any) about the incident; and
(d) the action or non-action that the City allegedly took.
5. Mrs Commisso's witness statement/chronology and any other evidence she gives or is given by any other party on her behalf is to be confined to the matters in issue as defined in the decision of the Tribunal published as Commisso and City of Gosnells [2005] WASAT 61. For the avoidance of doubt, the following matters are not to be dealt with in that or any other evidence given or produced by Mrs Commisso, except to the extent that it is strictly necessary to supply background or context:
- (a) matters occurring before the Ministerial direction to the City of 15 July 1999; and
(b) matters relating to the past or current lawfulness of Mr Gibbs' nonconforming existing use rights; and
(c) issues relating to the characterisation, conclusions or effect of the City's actions or non-actions (except as they relate to whether or not there has been enforcement of the Scheme, including existing use rights)."
31 In addition, at a lengthy directions hearing on 22 August 2005 - as yet apparently new material emerged from the applicant - some "12 incidents" of relevant "direct communication" with (that is, complaint to) the first respondent were identified as practicable matters of investigation, and the applicant was ordered, in effect, to structure her replacement witness statements around such incidents as had been identified. This attempt to identify and isolate relevant incidents proved to be somewhat futile. Nevertheless, the Tribunal has proceeded on the basis that such incidents were the key to her case (so far as they indicated complaint and alleged non-action by the first respondent) or were otherwise fairly representative of the nature of the complaints that she had with or concerning both the first respondent and the second respondent.
32 The applicant was also directed to give notice of witnesses required for cross-examination and a note of the substance of the proposed crossexamination, so as to avoid irrelevant cross-examination and to put the first respondent on notice of any "new" issues.
33 Notwithstanding the prescriptive nature of these orders, it was made clear to the applicant that such orders were being made to assist her to present her case in an orderly manner. It was also made clear to her that the Tribunal would, of course, hear from her at any stage on the need to depart from those standards, if necessary. In particular, the reference to the "12 incidents" was not intended to necessarily limit her to those precise events, providing that if she alleged other incidents or events, she did so in a timely, relevant and fair manner.
34 In any event, the Tribunal, having now heard the applicant's full case, is satisfied that the "12 incidents" present a fair indication or representation of the nature of her complaints.
(Page 12)
35 Something should now be said at this point of the general characteristics of the applicant's written evidence.
The applicant's witness statement
36 The "final" version of the applicant's witness statement, like earlier versions, contains, in roughly chronological order, her observations, notes, diary entries, video and audio recordings (surreptitious or otherwise), etc of various alleged incidents concerning the subject property from late 1999 to 2004. Although difficult to follow in parts, it presents a number of incidents concerning activities involving various vehicles of different kinds on the subject land and their impact on the applicant.
37 Even then, this "jumble" of records is a collection of fairly poorly identified actual vehicles (including various front-end loaders, semi trailers, trucks, prime movers, cranes and other vehicles, some of which appear to be alternative descriptions of the same vehicle class). It needs to be once again noted that some of this activity (perhaps much of it, or even all of it) is covered by existing lawful authority, at least as to land use under TPS 1 (see further below). It also needs to be stressed that such issues (that is, the extent of lawful authority) are not matters which the Tribunal in these proceedings can, or in any event should, make any findings upon.
38 Unfortunately, the applicant - perhaps for understandable reasons - made no attempt herself to try and separate out, or even acknowledge for the sake of argument, what might be possibly lawful or unlawful uses after 2000 (even though she might completely disagree with the classification, or the notion of an existing use right), or what might be evidence for a common law action (say, in nuisance in respect of vibrations affecting her house), or what might be evidence of something environmentally unpleasant (such as noise or fumes, but nothing directly material for a prosecution for breach of TPS 1, that is in respect of land use). Rather, everything has been more or less lumped together and presented as an ongoing, deliberate and unreasonable collective diminution of her amenity interests over the years which the first respondent should have stopped or prevented, in the applicant's view. The first respondent, of course, had to, and continues to have to, make judgment calls about such matters.
The applicant's compliance with orders
39 The applicant eventually, and to some extent, attempted to comply with such direction from the Tribunal set out above, and the hearing
(Page 13)
- proceeded more or less on the basis of the structure imposed by the orders (set out above), which gave some form to the applicant's voluminous and lengthy attempts to state her complaints in writing.
40 Such a structure was necessary in the circumstances so that the factual allegations were in a form capable of both comprehension and rational inquiry and limited to the subject matter of the inquiry. Also, in the event, it is likely that this approach truncated the final hearing substantially from a proposed five day hearing to one of under three days (including a site visit).
41 As to time frames, often the applicant did not comply with the orders of the Tribunal. A failure to comply with the order of 22 August 2005 was evident for a long period. In part, the cause of this failure was attributable to the stress suffered by the applicant caused by the length of her ongoing dispute with the first respondent and the second respondent, including the stress engendered by the many hearings in this matter (most of these, it must be said, arising out of the applicant's own conduct) and separate legal proceedings between the applicant and the second respondent. At one point, specialist medical evidence was received by the Tribunal that had the effect of excusing the applicant for one period of lengthy delay.
42 The first respondent repeatedly drew attention to the failure of the applicant to comply with the orders of the Tribunal throughout 2005 and early 2006.
43 In part, these failures may be explained by the applicant's apparent unfamiliarity with the legal system, even the informal system adopted in this Tribunal. In addition, the applicant resembles the applicant in Hay v State of New South Wales (Police) [2006] NSWADT 13. There, the Tribunal, with evident frustration, observed, at [18] (emphasis added):
"While the material [the applicant] has filed thus far does suffer from many of the shortcomings about which the respondent complains it is apparent that this is not so much a case of a flagrant disregard for the Tribunal’s directions but one of a complainant who has genuine difficulties understanding what is required."
(Page 14)
"Communication" failures
44 Bureaucratic and legal systems often require some degree of compliance with the "forms" used by those systems, standards or norms which the applicant had difficulty either comprehending or complying with. Naturally, a regulatory body (and for that matter a Tribunal on review) will, within reason, have to try to some extent to accommodate such users of the public systems or services under their control. But the difficulty engendered by such "communication problems" - for want of a better term - must inevitably have an impact on the quality of the response of the regulatory body. Assessing the quality of any response must at least take into account the difficulties presented by such a client or user. Such concerns, in the Tribunal's view, affected both this process in the Tribunal and the original regulatory response of the first respondent. This is something that the Tribunal has already foreshadowed above, and will return to below.
45 Here, it was often sometimes difficult for the Tribunal to follow the precise direction of the applicant's case despite the very considerable efforts put into the case management of it (see above). Like her witness statement, during the actual hearing, the applicant often was incapable of identifying precise dates, events, transactions, documents, persons and exhibits - although it was clear to the Tribunal that she was lucid in her own mind about such events, and that in either her or the Tribunal's voluminous materials, such particulars could be located, with sufficient effort, in a sense supporting to some degree what she was saying or asking. That she should be required to follow such a process was evidently frustrating and difficult for her and her adviser, Mr Italiano. Further, always standing somewhere in the background were the applicant's unresolved concerns about the validity of previously "determined" existing non-conforming use rights, and whether "conditions" had or could be attached to them.
46 The cross examination of witnesses and the orderly flow of issues thus became problematic at points to all participants in the hearing.
47 The question of costs (and the first respondent has been put to quite considerable cost) has been reserved for further consideration.
Factual Background
48 The essential background material is to be found either in the earlier proceedings or otherwise appears above. It is unnecessary to refer to such
(Page 15)
- material, except perhaps to record two events and to describe briefly the subject land.
49 It should be noted that, in May 1996, the second respondent was successfully prosecuted before the Armadale Court of Petty Sessions, in that he unlawfully used Lot 36 as a "contractor's yard". He was fined $1000 with costs. There is evidence of earlier attempted prosecutions of the second applicant, one of them apparently successful (to be found, amongst other places, on the archived files supplied to the former Tribunal, and in the Jordan report - see below), but nothing directly seems to turn upon this history, except that it indicates substantial past use by the second respondent of his land (some of it unlawful) and enforcement action by the first respondent.
50 In a lengthy report dated December 1997, Mr Jordan reviewed the complex history of the matter to that time and recommended, in effect, that no further action be taken in relation to enforcement of TPS 1 in light of the assumptions made and the decisions taken by the first respondent to that time.
51 As to the description of the subject land, the three fenced lots in question are large suburban lots backing onto a drain easement. Each lot is approximately 1250 square metres in size. The applicant's lot (Lot 37) comprises a relatively large brick house with a large developed backyard, which in parts overlooks her neighbour's property approximately to the west. That neighbouring property (Lot 36, owned by Mr and Mrs Gibbs) is a vacant level block and has no improvements installed upon it, but has certain equipment, items or vehicles stored upon it, apparently in pursuance of the owner's nonconforming use rights or otherwise lawfully on the land. The alleged activities occurring on that property and the Council's response to them are at the core of this review.
52 The property appears to merge into the rear of the Gibbs' property (Lot 35, where their house is erected), where a side (boundary) fence finishes (20 metres approximately, to the south) and a concentrated store of old machinery and other items rests. However, the middle property is, as has been mentioned, approximately the same size as the adjacent lots on either side and simply merges to the (unfenced) rear of the Gibbs' main property where, as has been mentioned, much machinery and related items are lawfully stored.
53 It appears that Lot 35 also has certain non-conforming use rights as a motor transport depot (see below).
(Page 16)
54 A metal fence encloses the front of the middle property, and nothing untoward or unusual about the property would strike the casual observer who was passing by.
Senior counsel's opinion and the respondent's resolution of 2000
55 Crucial to the review is the regulatory approach of the Council to the earlier complaints of the applicant. Much of that regulatory process turns upon a resolution of Council in 2000. That resolution, recommended by the Council's officers after a lengthy report (some quite negative to the applicant), from 12 September 2000, was in the following terms (emphasis added):
"Resolution 728
That Mrs Sara Commisso of 30 Lacey Street, Beckenham be advised:
(a) that due to a lack of substantiated evidence and subsequent legal advice received by the City, Council will not support her ongoing complaint demanding legal proceedings against Mr A Gibbs of 26 Lacey Street, Beckenham, for purported breaches of the provisions of Town Planning Scheme No. 1; and
(b) any future allegations by her or any member of her family in relation to this matter that are not substantiated by authentic documentation clearly depicting unlawful activities at No. 26 (Lot 35) and No. 28 (Lot 36) Lacey Street, Beckenham, and deemed to be unreasonable and vexatious, will not be investigated by Council staff but provided with a simple acknowledgment."
56 Of particular note at this point is the requirement imposed by Council - crucial to their case, as it turns out - that complaints must be "substantiated" by "authentic documentation".
57 However, as Mr Blyth emphasised in his final address, the letter to the applicant accompanying the resolution spoke in terms of the first respondent being "always prepared to consider any factual/substantiated evidence that is not unreasonable or trivial".
58 That resolution is dependent upon its context that includes the Ministerial direction set out above, further unresolved complaints from the applicant and a lengthy opinion obtained from senior counsel
(Page 17)
- (Mr ML Barker QC, now the Hon Justice ML Barker, President of this Tribunal). It should be stressed, however, that this opinion did not necessarily provide all of the answers to the complex history of ongoing land disputes concerning the lawfulness of the use of the land, but it has been extremely influential. The Council officers themselves - like everybody else involved in this imbroglio - had views about what matters might fairly be classed as preserved under the non-confirming use rights or otherwise incidental to approved land uses (see the accompanying report to Council dated 12 September 2000).
59 It will be necessary to refer to that opinion in a little detail.
60 The brief supplied to counsel showed pictures or images of "a large truck, an old truck, a motor vehicle, a trailer, some other object which appears to be a vehicle or related heavy duty equipment … and an assortment of materials including lengths of timber and the like" on the subject land.
61 Senior counsel's opinion cautioned that, in such circumstances, issues of the lawfulness of the use or development of land were questions of "fact and degree". Further, counsel was being asked about the prosecution of the second respondent which, it appears, was the accepted, and possibly the only practicable, regulatory enforcement mechanism available at that time.
62 (The Tribunal interpolates here that, until April 2003, s 10 of the previous Act provided for "tear down" notices and prosecution for a failure to comply with the provisions of a town planning scheme. After the 2003 amendments, s 10, in effect, permitted "stop" or enforcement notices, with prosecution as the fall back regulatory mechanism.)
63 After lengthy analysis, the opinion concluded as follows:
"In the result, either by virtue of the relevant uses being ancillary to [a dwelling house use permitted under the Town Planning Scheme then in force, TPS 1 - even though no such house yet existed on Lot 36] or the non-conforming use right acknowledged by the City … it appears to me that Mr Gibbs is entitled to keep on the Site the type of materials or vehicles depicted [in the photographs or images]."
64 Counsel also considered that the use of a front-end loader in relation to certain deliveries on Lot 35 (a motor transport depot under the
(Page 18)
- recognised nonconforming use rights) would be lawful as incidental or ancillary to the lawful use of land. As to similar issues arising in relation to Lot 36, counsel was more circumspect, given the materials supplied to him. Importantly, he did note that "if there is only occasional such use [then] I doubt that there is an unlawful separate use". On questions of maintenance to and transport of items stored on both lots, counsel suggested that these were also questions of fact and degree but that (summarising his views generally) if such activities were truly incidental to otherwise lawful uses, then those activities would probably survive scrutiny. Counsel opined that, on the materials provided, a prosecution in respect of such activities as were complained of would, in all probability, fail.
65 Finally, counsel briefly drew attention to the private rights found in the common law that affected neighbours, but not the first respondent, might avail himself or herself of.
66 With respect, there is nothing in counsel's advice that strikes the Tribunal as misconceived or out of the ordinary. It is true that it was commissioned by the first respondent and is confined to the matters selected by or on behalf of the first respondent, but it nevertheless attempts to fairly sum up, using cautious language, a complex set of transactions concerning the subject land (and adjacent land), and to give key guidance to decision-makers.
67 It is also true that the then Minister for Planning, the Hon G Kierath MLA, suggested in an earlier letter to the first respondent in September 1999 that "Lot 36 is a vacant lot and carries no residential occupation justifying incidental private activities", but that expression of opinion is not apparently based upon any legal advice. It would be understandable and reasonable for the Council to prefer the detailed advice of experienced senior counsel. The applicant elevated these views of the Minister to a central plank of her case.
68 In any event, by February 2001, the same Minister had come to a very different view, saying that he was now "strongly persuaded by the opinion of Mr Barker". The letter can be read as generally endorsing the first respondent's position at that point.
69 The applicant claims that she never received the Minister's letter dated 4 February 2001, but the first respondent was copied into its distribution and produced it for the Tribunal. Assuming that non-receipt was indeed the case, this incident partly contributes to explaining the
(Page 19)
- applicant's lack of insight into how matters had, in a sense, fundamentally shifted from late 2000.
70 The advice of counsel was supplied to the applicant in September 2000. The actual brief to counsel was made available during the hearing of the matter in the following circumstances.
71 During the hearing of this matter, on the recommendation of the Tribunal, the first respondent waived legal professional privilege and the applicant was given full access to the actual brief to senior counsel (and not just the opinion). This was done because it was suggested that Mr Barker might not have been given all of the relevant material. It should be noted that this allegation occurred in the subtext of the applicant's apparently "new" case - strongly advanced by her assistant and adviser, Mr Italiano, that there was, in effect, a "conspiracy" directed against the applicant's interests (see, for example, T:26 - 28 on "orders" from a "higher authority"; and "was there a meeting[?]").
72 It should be recorded here that not the slightest piece of actual evidence was advanced by the applicant to support this allegation.
73 After access to the brief in the hearing, these concerns generally seem to have dissipated a little (T:53) but arose again in the applicant's final address. (However, at one point, matters did perhaps become a little farcical when a photograph from 2004 [that is, a full two years after the date of the brief] was produced to the first respondent's witness, Mr Hutchinson, for him to comment on in the context of accurate photographs allegedly missing from the brief. Without wishing to labour the point, it should be recorded that this rather regrettably typical incident illustrates the difficulties faced by the Tribunal in understanding the applicant's confusing and poorly presented case. The first respondent was also placed in an awkward position, as the case it had to meet, in effect, kept evolving.)
Failure to appreciate position adopted by first respondent
74 It is worth pointing out here that it is doubtful whether the applicant has ever properly fully understood or appreciated (or if she did, she has never accepted) the nuances of the legal advice so provided, and thus the consequential difficulties, if the advice were to be followed, presented for a regulatory body in collecting sufficient evidence to demonstrate a breach of TPS 1. (This position would, as has been indicated, have been compounded by a failure on the applicant's part to appreciate that the then Minister, quite reasonably, had also changed his opinion.)
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75 This is especially the case where, as here, extensive long-standing nonconforming and other use rights (and rights incidental thereto), not always - it must be said - of precisely agreed certainty or scope, exist in tandem, authorising activities which are far removed from and possibly quite contrary to residential amenity expectations nowadays.
76 In the Tribunal's view, it should be firmly recorded at this point that neither the acceptance of counsel's detailed and carefully considered advice, nor the passing of the resolution set out above, could be seen, in themselves, as either unreasonable or as a failure to carry out the obligations of Council, given what had occurred in the past two decades between the parties and the matrix of competing interests and legal uncertainties. Indeed, it is strong evidence that the first respondent took its role seriously and diverted considerable ratepayer resources away from other matters, with a view to bringing matters to a head or resolving them in a way that provided some certainty to all of the parties.
77 The Tribunal turns to consider the applicant's case.
The applicant's case
78 Broadly speaking, the applicant's case is that the 2000 resolution was "ultra vires"; that the existing non-conforming use rights are quite narrow; that the Minister's earlier 1999 view was correct, and activities cannot spill over from Lot 35; that the first respondent should have "appealed" against the 1999 Ministerial Order (if it disagreed with its obligations); Lot 36 is used as an accessway into Lot 35; that the first respondent's officers "made up the rules as they went along"; that items favourable to her were missing from senior counsel's brief; and, in effect, that noise, fumes etc are planning issues. In addition, the applicant has drawn attention to various alleged incidents to illustrate her central point (see the cross examination of Mr Hutchinson, below). She also relies upon comments or observations made by the Magistrate in the transcript of the prosecution of the second respondent in 1996 and the Ministerial Order of 1999 that, she claims, was also directed to the second respondent.
79 At this point, it should be observed that the applicant has misconstrued the Ministerial Order, its intended effect and the legal framework surrounding it, and has elevated various ex tempore observations of the Magistrate in 1996 to something they were never intended to be. We can turn to her evidence.
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- • At the commencement of her case, the applicant attempted to tender a witness statement from Mr S Pandevski, a town planner. The first respondent objected to the tender because of its late notice, the failure to comply with relevant orders of the Tribunal and because, in any event, it was of doubtful assistance or relevance because it appeared to ignore key documents such as senior counsel's opinion.
• The Tribunal agreed with the first respondent and rejected the tender.
• As discussed above, there were 12 key incidents of relevant communication identified by the Tribunal that might indicate a legitimate cause for complaint and, as a consequence, could be relevant to the applicant's case, (although her witness statement refers to numerous other conversations, despite the exhortations of the Tribunal).
80 These may be summarised as:
Pre-2000 resolution
30 May 2000 (call to Mr Wells - red glare from a "red truck" and vibrations)
7 July 2000 (call to Mr Perkins - complaints about truck and trailer combinations, tractors, the removal of vehicles)
18 July 2000 (letter to the respondent with similar complaints, including noise and fumes)
8 August 2000 ("presentation" by the applicant of various evidence - to the first respondent)
Post-2000 resolution
15 August 2000 (call to Mr Haeren concerning semi-trailers loaded up with tractors and referral to Main Roads)
12 April 2001 (attempted call to Mr Holtby, the CEO - complaints concerning a front-end loader and old tractors)
30 - 31 May 2001 (complaint and letter from the first respondent - degreasing of old vehicle using front-end loader)
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- 15 March 2002 (call to Mr Wells - front-end loader, advised by him to take her own legal action)
5 April 2002 (call to Cr Devereaux, referred applicant to the 2000 resolution)
29 October 2003 (email or letter to first respondent regarding October incidents involving a front-end loader)
6 February 2004 (call to Mr Wells, concerning use of front-end loader and moving vehicles around, including fumes etc)
14 February 2004 (call to Cr Moss, who whilst concerned, indicated that the matter was effectively closed by Council's resolution).
81 Statements concerning these matters were filed by the respondent (and received into evidence) on behalf of Mr Haeren, Mr Wells, Mr Perkins, Mr Searle, Mr Devereux, Ms Palmer, and Mr Hutchinson.
82 It is convenient to note at this point that the first respondent (once sufficient particulars were furnished to it and further investigations were carried out and statements obtained) "[accepted] that all [of] these communications occurred" in substance, as alleged. This concession shortened proceedings substantially.
83 Only Mr Hutchinson, the first respondent's principal witness, was crossexamined about various matters (see below).
84 The applicant was cross-examined on two important issues. The first related to her failure to provide any further video evidence to the first respondent, which she had collected and which was in her possession, until September 2004, that is, some four years after a copy of the 2000 resolution was received by her. She freely and unambiguously acknowledged that this was the case (T:94). Secondly, the applicant similarly agreed that she had failed to provide the first respondent with any photographic evidence at all from August 2000 to the present: (T:94).
85 The reasons for this was because she "didn't agree with [the resolution], and I know that once again I'm just hitting a brick wall here, it's been 30 years … they're still asking for more evidence [a reference to previous video evidence that she had supplied] … it doesn't matter what evidence I give, it's not going to help … I'd be wasting my time".
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86 The applicant agreed that, following a complaint by her in May 2001 (an allegation of the degreasing of a vehicle on the subject land which had led to an inspection by the first respondent), she had not provided her video footage of the incident complained of. She had, however, sent footage to an unrelated State Government Department (who wrote to her), but not to the first respondent.
The first respondent's case
87 The first respondent's case revolves around a long administrative process, so far as is presently relevant, dating from 1997. In summary, this involved collecting information from the applicant and inspections of the subject land, matters, in effect, formalised by the 1999 Ministerial Order. On the legal front, doubts continued to be expressed about the extent of the second respondent's non-conforming use rights. The 1997 Jordan report appeared to confirm non-conforming use rights. This process culminated in the advice from senior counsel in 2000 that, speaking generally, suggests a reasonably wide view of what might be permissible on both Lots 35 and 36. This was consistent with Mr Hutchinson's views. (Mr Hutchinson is the first respondent's Compliance Officer.) There was a possibility that the second respondent had greater rights than had been acknowledged to date and that his past prosecutions (had they been properly defended) might not have succeeded. Moreover, the intensity of use of the subject land by the second respondent in respect of his recognised personal use (including hobbies related to vintage cars or trucks, tractors and the like) "has [never] reached a level of intensity" whereby a prosecution could be ultimately sustained.
88 The first respondent was highly critical of the applicant for not seeking her own legal advice after 2000 (in particular, to pursue her private legal rights), and in particular for "deliberately" withholding material evidence which she would later produce in apparent criticism of the first respondent. Moreover, the complaints that she did make (only two of which were in writing) were characterised as "at times vague and confusing", and mixed up with a longstanding grievance to the effect that there were no non-conforming use rights at all.
89 The applicant did not challenge the evidence of Mr Hutchinson in its material aspects concerning fortnightly visits to the subject land from October 2000 to May 2005.
90 She did, however cross-examine him on various matters or incidents. The thrust of that cross-examination was in relation to whether the many
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- photographs supplied to senior counsel accurately depicted the landscape of the subject land (he said that they did); whether the 1998 video produced by the applicant, or a summary of it, found its way into the brief to counsel (no); whether the viewing of either the 1998 video or the August 2000 video by him caused him to alter his views in any way (no); whether he ought to have travelled immediately to the property on receipt of a complaint in order to see the evidence (it would be passed on to a ranger or dealt with in effect no later than the following day).
The "Red Truck" Incident
91 Mr Hutchinson was also asked about a "red truck" parked on the subject land. This vehicle is referred to at various points in the evidence, but initially it was never identified or defined with any particular precision as to make it common ground between the parties. Its size, shape, ownership, movements and ultimate fate remain matters of some mystery, at least to the Tribunal. However, some clues to its existence arose out of Mr Hutchinson's testimony.
92 At various times, so it is alleged, this vehicle has been the source of excessive glare radiating into the applicant's premises, noise, vibrations and is otherwise a source of annoyance to her. Of course, these might be matters for legal action outside of enforcement of TPS 1. Putting that to one side, it is alleged that its presence on the subject land has sometimes been "overlooked" by the first respondent's officers. It is also alleged that its presence exceeds the recognised non-conforming use right, namely "[the] parking of two (2) prime mover/semitrailer combinations together with carrying out of minor maintenance thereto".
93 Mr Hutchinson described it as a prime mover and "fitted out specifically for conveying a crane". It was thus, in his view, within the recognised nonconforming use rights. Moreover, because the existing use right, in his view, extended to combinations, it could be included in up to four permitted separate but related vehicles (or combinations).
94 Mr Hutchinson was shown a photograph (found in Ex 13) taken on 7 June 2000 that shows part of a truck structure parked adjacent to the applicant's land. Next, he was taken to a red vehicle appearing in one of his own photos (Ex 7A) taken on 28 March 2000. There appears to be a red vehicle or small crane vehicle on the left of a prime mover, parked at the rear. Next, he was taken to another photograph of his taken on 14 August 2000 that was shot through the open gate. The red truck/crane was apparently missed from the photo, as it was parked to the extreme left of the property, and close to the applicant's house.
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95 Next, Mr Hutchinson was taken to senior counsel's opinion that raised a possible doubt about the extent of authority for an "orange" vehicle parked on the land. Presumably this is a reference to the same vehicle.
96 None of this material caused Mr Hutchison to resile from his view that the "red truck" could lawfully be parked on the land, and that it was covered by recognised existing use rights.
Findings and Conclusions
97 There is no doubt that the applicant has been deeply distressed by relevant events (discussed above) that have occurred over the last few years. She has developed, perhaps understandably, a particular sensitivity to the results that flow from certain land use activities on Lot 36 that have affected her and which have occurred from time to time. Her only defence to these events was to record them in some form, and to complain (sometimes at what appears unreasonable length or repetitiously) about them. Neither step has been particularly effective, mainly because the applicant either did not understand or accept or otherwise recognise the practical realities created by the first respondent's resolution of 2000 (a process that the Tribunal finds was reasonable in its context: see below). Moreover, as we have seen, not all of the "evidence" that the applicant collected found its way to the first respondent in a timely fashion, in any event. Her reasons for this, whilst understandable from her point of view, materially weaken her criticism of the first respondent. Viewed objectively, her conduct in this regard is not supportable.
98 As a consequence of their dealings with the applicant, it is probable that some of the first respondent's officers, in their interaction with the applicant, saw her as a "difficult customer" with an unjustified or unreasonable obsession about the matter. No doubt that is how she sometimes presented, perhaps obstinately refusing to recognise the first respondent's difficulties and its administrative response to a long-standing complex legal and regulatory problem, one that over the years had diverted a disproportionate amount of the first respondent's resources.
99 The Tribunal must add, as was foreshadowed above, that it did not always find it easy to comprehend the point that was being made by the applicant. The Tribunal has occasionally referred to the difficulties it had in understanding the applicant's case in this inquiry. Those difficulties tend to support the view that the applicant does not understand the legal and regulatory framework that bodies such as the first respondent are
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- required to operate in and the difficulties that a complex regulatory matter such as this creates for them.
100 The apparent reticence of the first respondent is not equivalent to bad faith, still less is at evidence of a conspiracy against her interests.
101 Speaking generally, some of the photographs and images produced concerning the activities and what was stored on the land from time to time are, at first blush, troubling, although it must be conceded that, in terms of land use and intensity of land use, they might nevertheless be lawful. Nevertheless, the essential question here is whether such images were also observed by the first respondent or supplied to the first respondent in a timely or comprehensible way (including, their separation or isolation from the issue of past non-conforming use rights) and if so, whether, in any event, there was any way of practically preventing a breach of TPS 1 (if there be one) in the complex matrix of facts and law in this case.
102 Looking at all of the material made available to the Tribunal and considering the history of the matter, the Tribunal has concluded that it could not be said that the first respondent's position as at 2000 and thereafter, and in particular, the regulatory response culminating in the 2000 resolution, was, in its full and proper context, an unreasonable or an inappropriate regulatory and administrative approach as regards their statutory duties. (This is not, however, to necessarily endorse every criticism made of the applicant in the supporting report leading to that resolution.)
103 Further, there is no evidence that senior counsel was misled in any material particular as regards the brief prepared for him which led to the opinion central to the conduct of the first respondent. On the contrary, the material discussed in this inquiry tends to suggest that the brief contained a fair description of the use of the subject land and the problems arising from that use. The fact that the opinion's conclusions were, in part, ultimately used by the applicant to bolster her cross-examination supports that view.
104 The central problem for the applicant is that it seems that many or most of the activities on the subject land that she complains of are, unfortunately for her, either entirely lawful or arguably so (in terms of land use, which is the central issue before the Tribunal), or that to the extent that they might not be, they would be practically difficult to stop given all that has transpired to date, and the difficulties in mounting
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- courtbased enforcement by a local government. Further, even if the first respondent's officers were ultimately found to be wrong in any judgment call about such matters (for example the "red truck" matter), such errors would be excusable, explicable or understandable in the broader context of this multifaceted matter.
105 Unless and until the applicant recognises this critical point, it is unlikely that any progress can be made on resolving her long-standing problems. Thus, a mediated outcome (an obvious solution) would require the applicant to move beyond this point to work towards a practical, mutually agreed, self-regulating regime for the use of the land. It is quite possible, given all that has passed now, that such a solution is no longer a viable option.
106 Despite entreaties to do so, the applicant has never, so far as the Tribunal has been made aware, ever pursued the question of a common law civil action. Mistakenly, she has believed that this was something for the first respondent to do. Generally speaking, it is not the first respondent's role, as it is primarily concerned with its own statutory duties and powers of enforcement. A civil, private action to determine the lawfulness and extent of the second respondent's non-conforming use rights would be difficult to maintain now, and has probably disappeared forever into the reaches of time. A civil action in nuisance for what is allegedly occurring on the land now is entirely a different matter. "Nuisance offers recovery for unreasonable interference with an occupier's amenity in the form of an unaffronted sense of smell (eg, noxious fumes) and of hearing (eg, excessive noise).": Newcastle City Council v Shortland Management Services (2003) 57 NSWLR 173 at 190 (CA).
107 Such an action is not necessarily controlled by the lawfulness of the use of the land under a town planning scheme. Thus, this comment in Court Forms, Precedents and Pleadings - Victoria (Butterworths Looseleaf Service), at [50, 107], on the effect of planning permission:
"Planning permission is not of itself a license to cause a nuisance. A planning permit or planning rezoning may change the character of an area and thus render an activity which would have been a nuisance into one which is then no longer so. But unless the grant of the permit has this effect, the creation of a nuisance in carrying on an activity allowed by planning permission may still be actionable. It must be inevitable that
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- the activity granted planning permission gives rise to a nuisance."
108 Of course, success in such an action is dependent upon proof and credibility and a focus on relevant issues in a complex legal framework much more formal than a Tribunal. It should only be embarked upon with legal representation; there is, of course, no guarantee of success.
Recommendations
109 So far as this matter can be treated as an application for a review, it must therefore be dismissed. So far as it is a report with recommendations, the Tribunal makes the following recommendations.
1. No action should be taken in relation to the respondent's handling or conduct of this matter.
2. The Minister's Department should take practical steps to offer or arrange for Mrs Commisso to receive advice on or counselling in relation to pursuing any personal action she has at common law in, say, nuisance (an action to be pursued at her cost), and otherwise explaining to her the context of this report, its limited function, the reasoning of it and the effect of the decision.
3. Alternatively or in addition, the Minister's Department should consider facilitating external mediation between the two affected neighbours, if both parties are agreeable to this.
4. Should this matter ever be returned to the Tribunal as an inquiry, the Minister's Department should give consideration, in the public interest, to meeting the reasonable legal costs of Mrs Commisso, and to contributing to the reasonable legal costs of the City of Gosnells.
Orders
110 The Orders of the Tribunal are:
1. So far as the matter referred to the Tribunal may be characterised as a review it is dismissed.
2. The question of costs is reserved.
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I certify that this and the preceding [110] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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