Gregory v The Queen
[2017] VSCA 15
•15 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0124
| MENDO KITANOVSKI | Applicant |
| v | |
| MELTON CITY COUNCIL | First Respondent |
| and | |
| COUNTY COURT OF VICTORIA | Second Respondent |
---
| JUDGES: | KYROU and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 February 2017 |
| DATE OF JUDGMENT: | 15 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 15 |
| JUDGMENT APPEALED FROM: | Kitanovski v Melton City Council [2016] VSC 474 (Keogh J) |
---
ADMINISTRATIVE LAW – Application for leave to appeal against order of Trial Division judge dismissing application for judicial review of order of County Court judge – Conviction for offences involving use of land without planning permit – Whether charges valid – Whether Trial Division judge misconstrued Planning and Environment Act 1987 ss 6, 126(2) and Melton Planning Scheme cl 35.04-1 – Whether Trial Division judge failed to give effect to principle of legality – Criminal Procedure Act 2009 s 6, sch 1 cls 1, 3 – Application for leave to appeal refused.
---
| APPEARANCES: | Counsel | Solicitors |
| The Applicant appeared in person (assisted by his McKenzie friend Nigel Waddington) | ||
For First Respondent | Mr R Appudurai (solicitor) | Russell Kennedy |
| No appearance for Second Respondent |
KYROU JA
McLEISH JA:
Introduction and summary
The applicant seeks leave to appeal against an order made by a judge of the Trial Division on 11 August 2016 dismissing his application for judicial review of a decision of a judge of the County Court to convict him of six charges under s 126(2) of the Planning and Environment Act 1987 (‘P&E Act’).[1]
[1]Kitanovski v Melton City Council [2016] VSC 474 (‘Reasons’).
On 6 June 2014, the Melton City Council (‘Council’) brought charges under the P&E Act against the applicant which, relevantly, related to the use of land in Plumpton that he and his brother owned (‘Land’).[2] The charges alleged that on various dates in 2013 and 2014, the applicant was the owner of the Land and that the Land ‘was used for the purpose of the deposit of soil and other related materials without a planning permit in contravention of clause 35.04–1 (Green Wedge Zone) of the Melton Planning Scheme’ (‘Planning Scheme’). Each charge specified that it was for an offence under s 126(2) of the P&E Act.
[2]The Council also brought charges against the applicant’s brother and the applicant’s company but those charges are not presently relevant.
On 30 April 2015, the Sunshine Magistrates’ Court found the applicant guilty of 18 charges, imposed an aggregate fine of $27,000 with conviction and ordered him to pay costs. The applicant appealed to the County Court.
On 14 October 2015, Judge Montgomery held that the use of the Land for the purpose of depositing soil and other related materials required a planning permit and that the applicant had used the Land for that purpose without such a permit. He dismissed 12 of the charges, found the applicant guilty of six charges, fined him an aggregate sum of $10,000 and ordered him to pay costs.
On 14 December 2015, the applicant applied to the Trial Division of the Supreme Court under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 for judicial review of Judge Montgomery’s decision in respect of the six charges and sought an order quashing the convictions. The application was dismissed by Keogh J. He held that Judge Montgomery had not erred in his construction of the P&E Act or the Planning Scheme, or in finding the charges were valid.
The applicant seeks leave to appeal Keogh J’s decision. He represented himself before this Court, assisted by a McKenzie friend, Nigel Waddington.[3]
[3]It appears that the applicant was also assisted by a McKenzie friend before Judge Montgomery.
For the reasons that follow, the application for leave to appeal will be refused.
Relevant statutory provisions
Clauses 1 and 3 of sch 1 to the Criminal Procedure Act 2009 (‘CPA’) relevantly provide as follows:
1 Statement of offence
A charge must—
(a)state the offence that the accused is alleged to have committed; and
(b)contain the particulars … that are necessary to give reasonable information as to the nature of the charge.
…
3 Statutory offence
(1) In this clause—
statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.
(2)For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it—
(a) identifies the provision creating the offence; and
(b)describes the offence in the words of the provision creating it, or in similar words.
…
Section 6 of the CPA relevantly provides that a charge sheet must comply with sch 1 to the CPA.
Section 9(1) of the CPA provides that a charge sheet is not invalid by reason only of a failure to comply with sch 1.
At the time of the alleged offending, cl 35.04–1 of the Planning Scheme contained a ‘Table of uses’ with three sections (‘Table of Uses’). Section 1 listed a number of uses for which a planning permit was not required, Section 2 listed a number of uses for which a planning permit was required, and Section 3 listed a number of prohibited uses. The last item in Section 2 was ‘Any other use not in Section 1 or 3’, which is commonly referred to as the ‘innominate use’ category or provision.
Sections 1, 4, 6 and 126 of the P&E Act relevantly provide as follows:
1 Purpose
The purpose of this Act is to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians.
…
4 Objectives
(1)The objectives of planning in Victoria are—
(a)to provide for the fair, orderly, economic and sustainable use, and development of land;
…
(g)to balance the present and future interests of all Victorians.
…
…
6 What can a planning scheme provide for?
(1) A planning scheme for an area—
…
(b)may make any provision which relates to the use, development, protection or conservation of any land in the area.
(2) Without limiting subsection (1), a planning scheme may—
…
(b)regulate or prohibit the use or development of any land;
…
…
126 Offence to contravene scheme, permit or agreement
…
(2) The owner of any land is guilty of an offence if—
(a) the land is used or developed in contravention of a planning scheme, a permit or an agreement under section 173; or
(b)there is any failure to comply with any planning scheme, permit or agreement under section 173 applying to the land.
…
Decision of Trial Division
At the hearing before Keogh J, it was not in dispute: that the applicant was the owner of the Land; that the Land had been used for the purpose of the deposit of soil and other related materials; and that no planning permit had been obtained for that use.
The applicant, who appeared for himself, advanced the following arguments before Keogh J as to why the charges brought against him were invalid:
(a) The charges offended cl 3(2) of sch 1 to the CPA, in that they did not describe the offence in the words of the provision creating the offence, or in similar words. This was said to be because the use of the Land for which the applicant was charged — the deposit of soil and other materials — was not referred to in either s 126(2) of the P&E Act or cl 35.04-1 of the Planning Scheme.
(b) The function of the ‘innominate use’ provision in the Table of Uses was ‘to allow for — not restrict — uses which are not entirely covered, but are similar to, the land use terms listed in Section 2’ and could not be used as the foundation for prosecution of a landowner for failure to obtain a planning permit. The applicant relied on Cascone v City of Whittlesea[4] and City of St Kilda v Perplat Investments Pty Ltd[5] in support of this argument.
(c) As owner of the Land in fee simple, the applicant has fundamental common law rights as to the unrestricted manner in which he might use it. His rights to use the Land can only be curtailed by unmistakable and unambiguous statutory language. Neither the P&E Act nor the Planning Scheme use such language to prohibit his use of the Land to deposit soil or other related materials without a planning permit because such a use is not expressly listed in Section 2 of the Table of Uses. Accordingly, as the charges were based on a failure to obtain a planning permit in respect of that use, they are invalid.
[4](1993) 11 AATR 175 (‘Cascone’).
[5](1990) 4 AATR 358 (‘Perplat’).
The applicant did not contend that the depositing of soil and other materials was ancillary to a use falling within Section 1 of the Table of Uses and therefore did not require a planning permit.
In relation to the issue whether the charges were invalid because they did not describe the offence in the words of the provision creating the offence, Keogh J rejected the applicant’s argument and held that the charges were valid for two reasons. The first reason was that the charges paraphrased s 126(2)(b) of the P&E Act and clearly identified the particular clause of the Planning Scheme which they alleged had been contravened.[6] The second reason was that it was necessary for the informant to include in the charges reference to the particular use said to be made of the Land without a planning permit, even though that use was not one of the uses specifically identified in the Planning Scheme.[7]
[6]See [26], [31] and [47] below.
[7]Reasons [21].
Keogh J held that the charges complied with the common law requirements for a valid charge, namely, that a charge must contain the essential factual elements and the legal nature of the offence.[8] This was said to be because they contained the essential elements of the offence alleged, stated the legal nature of the offence in terms of s 126(2)(b) of the P&E Act and cl 35.04–1 of the Planning Scheme and made plain to the applicant the offence with which he was charged.[9] The judge said that the informant had to clearly identify the actual use made of the Land without a planning permit, rather than using the words of the innominate use provision, otherwise the applicant would not have known what case he had to meet.[10]
[8]Reasons [16]. Keogh J referred to Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 557 [26].
[9]Reasons [23].
[10]Reasons [21].
Keogh J added that if his conclusion that the charges satisfied the requirements of the CPA was wrong, and there were some material inconsistency between the wording of the charges and the provisions creating them, he would conclude that the charges were nevertheless valid pursuant to s 9(1) of the CPA.[11]
[11]Reasons [22].
In relation to the issue about the proper function of the innominate use provision, Keogh J held as follows:
One purpose of clause 35.04-1 [of the Planning Scheme] is to assist landowners to understand when a use of land is permitted, when the use is prohibited, and when a permit for a particular use is required. The possible uses which could be made of land are numerous (and perhaps indefinite) so that a complete list of uses requiring a permit could not be included within section 2. However, listing some uses requiring a permit is not without purpose. Listing of those land use terms in section 2 provides information which property owners would no doubt find useful as guidance in certain circumstances.[12]
[12]Reasons [26].
Keogh J held that the decisions in Cascone and Perplat ‘make clear that the function of the innominate category in section 2 of clause 35.04–1 is … the planning control of uses of land other than those uses specifically listed in sections 1, 2 or 3 of cl 35.04–1’.[13]
[13]Reasons [28].
In relation to the common law rights issue, Keogh J held that although fundamental common law rights may only be abrogated or curtailed in circumstances and to the extent that legislative intent is ‘clearly manifested by unmistakable and unambiguous language’,[14] that general principle requires qualification. In this regard, Keogh J referred to the conclusion of Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers’ Union[15] that ‘modern legislatures regularly enact laws that take away or modify common law rights’ and the ‘assistance to be gained from a presumption will vary with the context in which it is applied’.[16]
[14]Reasons [29] citing Coco v The Queen (1994) 179 CLR 427, 437–8 (‘Coco’).
[15](2004) 221 CLR 309 (‘Electrolux’).
[16]Electrolux (2004) 221 CLR 309, 328 [19]; Reasons [30]. Keogh J also referred to Lee v New South Wales Crime Commission (2013) 251 CLR 196, 310 [313], 312–3 [317] (‘Lee’).
Keogh J rejected the applicant’s argument on the common law rights issue for the following reasons:
First, as can be seen from sections 1 and 4, the design of the [P&E] Act is to deal, without restriction, with the planning of the use of land in Victoria. Second, that planning task is to be performed in the interests of all Victorians. In this way and other ways the [P&E] Act is expressed very much in terms of community values and the protection of community interests. Third, it is clear from Part 6 that a planning scheme in force under the Act may regulate the use of any land. Again there is no particular restriction on this power. Fourth, that such regulation might extend to the particular use in this case, being ‘deposit of soil and other related materials’ is effectively conceded by the [applicant]. In other words, if that use appeared in the list of specific uses in section 2 of clause 35.04-1 then the [applicant], on his own argument, would have no cause for complaint. Fifth, the innominate use clause is a tool which it was necessary for the drafters of the Planning Scheme to use because of the likely impossibility of listing in clause 35.04-1 every use to which land in this zone could be put. Sixth, in the scheme of the clause 35.04-1 table, … use of the innominate clause does not cause any uncertainty or ambiguity. A use not otherwise listed in any of the sections of the clause 35.04-1 table is a use requiring a permit. Seventh, the context in this case includes the nature of the right which is restricted, the degree of restriction, and the manner in which and the degree to which other similar rights have been restricted by the [P&E] Act and the Planning Scheme. What is involved is infringement of the [applicant’s] right to use his property in one particular fashion in circumstances in which the [applicant] agrees that his rights to use the property are otherwise properly restricted by the provisions of the [P&E] Act and the Planning Scheme. It is a significantly more modest restriction or infringement of rights than was contended by the [applicant].[17]
[17]Reasons [35].
Grounds of appeal
The application for leave to appeal relies on the following proposed grounds of appeal:
1The learned Justice erred in holding that the charges, impugned by the Applicant, pertaining to ‘deposit of soil and other related material’ are valid, and thus disclosed an offence known to law.
In finding that the impugned charges are valid, his Honour has impermissibly determined that an ambiguous ‘innominate use’ provision in a mere piece of subordinate legislation (namely Section 2 of Clause 35.04–1 of the [Planning Scheme]) may form the basis of a criminal charge.
Furthermore, even if such a determination were permissible (which the Applicant denies), the impugned charges as drafted are insufficient in that they fail to disclose how the ‘deposit of soil and other related material’ is translated into an offence known to the law via the ‘innominate use’ provision — a matter which needs to be proved and/or forms part of the legal elements of the charge.
Furthermore, the learned Justice erred in his reliance on s 9 of the [CPA] to effectively validate an invalid charge.
2The learned Justice erred in his construction of the [P&E Act], and the [Planning Scheme] by, inter alia:
(a)Failing to give proper effect to the principle of legality; and/or
(b)Failing to include the Applicant’s common law right to liberty in his reasoning; and/or
(c)Failing to determine that the ‘innominate use’ provision in the [Planning Scheme] serves a permissive — not restrictive — purpose.
Ground 1: Validity of charges
The applicant submitted that because the phrase ‘deposit of soil and other related material’ does not appear anywhere in the Planning Scheme, it discloses no offence known to law. According to the applicant, for an offence to be known to law it must be ‘noted somewhere’ and cannot merely be ‘conjured by a prosecuting authority’.
In his written case, the applicant accepted Keogh J’s finding that the charges paraphrase s 126(2)(b) of the P&E Act and cl 35.04–1 of the Planning Scheme, but submitted that the charges should refer specifically to Section 2 of cl 35.04–1 or the innominate use provision. According to the applicant, by concluding that the charges were valid, Keogh J made a finding that was inconsistent with this Court’s decision in Director of Public Prosecutions v Kypri[18] in which case a charge was held to be invalid by virtue of the fact that it referred to a section of an Act but failed to refer to the relevant subsection.
[18](2011) 33 VR 157, 162–4 [10]–[19] (‘Kypri’).
At the hearing of the application for leave to appeal, the Bench asked the applicant whether he could explain why Keogh J had found that the charges paraphrase s 126(2)(b) of the P&E Act when they in fact paraphrase s 126(2)(a). The applicant was not able to offer any explanation. We return to this matter below.
The applicant also submitted that because the charges made no mention of the innominate use provision, they failed to specify all the factual and legal elements of the charged offence. That conclusion was said to be inconsistent with this Court’s decision in Baiada Poultry Pty Ltd v Glenister.[19]
[19](2015) 257 IR 204, 242–3 [157] (‘Baiada’).
In relation to Keogh J’s reliance on s 9(1) of the CPA, the applicant noted that this provision refers to a ‘charge-sheet, and not a charge per se’ and submitted that it is more likely that it would operate so as to prevent an entire charge-sheet from being invalidated due to an invalidity in one particular part of it. By way of example, the applicant described a hypothetical situation where a charge-sheet listing 10 charges contains one charge which is invalid by virtue of it failing to comply with sch 1. According to the applicant, in that scenario, s 9(1) would operate to allow a court to quash the invalid charge without invalidating the entire charge-sheet.
The Council submitted that Keogh J properly construed and applied the P&E Act, the Planning Scheme and the CPA and did not make any determination which was relevantly inconsistent with the judgments in Kypri or Baiada.
In oral submissions, the Council submitted that, in formulating the charges, it had two options. The first option was to adopt the wording of the innominate use provision and allege that the applicant used the Land for a purpose that was not in Section 1 or 3 of cl 35.04–1 of the Planning Scheme without a planning permit in contravention of the Planning Scheme. The second option was to describe the actual use for which the Land was deployed without a planning permit in contravention of the Planning Scheme. The Council submitted that, by selecting the second option, the Council provided more meaningful information to the applicant about the nature of the offences with which he was charged.
The Council attributed Keogh J’s finding that the charges paraphrase s 126(2)(b) of the P&E Act to a typographical error on the judge’s part. The Council contended that this was the only possible explanation for two reasons. First, the transcript of the County Court hearing, which was before Keogh J, made it clear that the Council relied on s 126(2)(a). Secondly, in exchanges with the applicant in the judicial review proceeding, Keogh J referred only to s 126(2)(a) in describing the statutory source of the charges.
In our opinion, Ground 1 cannot be made out.
The legislative scheme pursuant to which the applicant was charged and convicted is clear and straightforward. Section 6(2)(b) of the P&E Act provides legislative authority for a planning scheme to prohibit uses of land and s 126(2) provides that an owner of land is guilty of an offence if the land is used in contravention of a planning scheme. In the present case, the Table of Uses in cl 35.04-1 of the Planning Scheme listed uses for which a planning permit was not required (Section 1), uses which were entirely prohibited (Section 3) and uses for which a planning permit was required (Section 2). Section 2 of the Table of Uses comprised a list of specific uses and the innominate use provision, ‘Any other use not in Section 1 or 3’. These provisions make it clear that an owner of land requires a planning permit for a use which either falls within the specific list in Section 2 of the Table of Uses or does not otherwise fall within Sections 1 or 3. Pursuant to s 126(2) of the P&E Act, an owner of land deployed in contravention of that requirement is guilty of an offence. There is no ambiguity in this legislative scheme.
The use of the Land for the purpose of depositing soil and other related materials did not fall within Sections 1 or 3 of the Table of Uses or the specific list of uses requiring a planning permit in Section 2. Accordingly, that use fell within the innominate use provision. The Planning Scheme was contravened because no planning permit was obtained in relation to that use. The applicant, as the owner of the Land which was used in contravention of the Planning Scheme, was guilty of an offence under s 126(2) of the P&E Act.
There is nothing ambiguous about the innominate use provision. In order to determine whether that provision applied to a use, all that was required was to ascertain whether that use fell within the specific list in Section 2 of the Table of Uses or within Sections 1 or 3.
Contrary to the applicant’s submission in support of Ground 2,[20] when the context in which the innominate use provision appears in the Table of Uses is considered, it is simply not possible to construe it as permitting, rather than restricting, the range of uses for which a planning permit is not required. There is nothing in Perplat or Cascone which supports the applicant’s submission.
[20]See [52] below.
Perplat[21] concerned an appeal from a decision of the Administrative Appeals Tribunal (‘AAT’) which granted a planning permit for a development on the basis that the proposed use was ‘serviced apartments’. The relevant planning scheme contained a table of uses, column 4 of which specified uses (including ‘hotel’) which required a planning permit and column 5 of which specified uses (such as ‘residential building’) which were prohibited. The following innominate use provision appeared under column 4: ‘any purpose not specified or included in any other column of this section of this table’. ‘Serviced apartments’ did not appear anywhere in the table of uses. The Full Court of the Supreme Court held that the AAT did not err in finding that the proposed development did not fall within any enumerated use in the table but rather fell within the innominate use provision. Southwell J said that the planning scheme did not purport to cover every possible use to which land might be put and that the innominate use provision ‘indicates that the scheme does not purport to be all encompassing’.[22] Accordingly, the AAT was not confined to the enumerated uses if they did not aptly describe the proposed development and the AAT did not err in characterising the development as ‘serviced apartments’ which fell within the innominate use provision.
[21](1990) 4 AATR 358.
[22]Perplat (1990) 4 AATR 358, 372.
Cascone[23] concerned a clause in a planning scheme which listed a number of uses that could be permitted, including ‘Peripheral sales’, ‘Warehouse’ and ‘Any use not in Sections 1 and 3’. Ashley J held that the AAT had misdirected itself in finding that the use of premises to sell and hire videos fell within the prohibited use ‘shop’ and that this use could not be characterised as ancillary to the use of the premises as a warehouse or for peripheral sales. In the course of his judgment, Ashley J said:
It is wrong to approach the ascertainment of purpose of proposed use on the footing that it must fit within one (or more) of the uses defined in a [planning] scheme; at least that is so where there is provision for innominate uses in the scheme.[24]
[23](1993) 11 AATR 175.
[24]Cascone (1993) 11 AATR 175, 190.
In our opinion, the observations in Perplat and Cascone that the existence of an innominate use provision in a planning scheme caters for uses that do not fall within any enumerated uses, do not assist the applicant’s case. In fact, these authorities support the proposition that the use for which the Land was deployed fell within the innominate use provision and thus required a planning permit.
The applicant’s submissions misconceive the legislative source for the offences of which he has been convicted. That source is s 126(2) of the P&E Act rather than the innominate use provision or any other item in the Planning Scheme. That is because it is s 126(2) which establishes an offence in circumstances where a person is the owner of land which is used in contravention of a planning scheme. In the absence of s 126(2), an owner of land which is deployed for a use that requires a planning permit would not be guilty of an offence if he or she failed to obtain such a permit.
The offence for which the applicant was convicted is one that is known to law for the reasons we have already explained. The elements of that offence are: that the accused is the owner of particular land; that the land has been deployed for a use for which a planning permit is required; and that no planning permit was obtained for that use. The charge-sheet set out these three elements and specified that an offence was committed under s 126(2) of the P&E Act. It complied with cl 3(2), and therefore cl 1(a), of sch 1 to the CPA. The charge-sheet described the offence in the words of the provision creating it, namely, s 126(2) of the P&E Act. As the innominate use provision did not create the offence, it was not necessary for the charge-sheet to refer to it. Indeed, it would have been confusing for the charge-sheet to set out the words of the innominate use provision, as those words — as distinct from the words in s 126(2) — would not have given the applicant ‘reasonable information as to the nature of the charge’ against him, as required by cl 1(b) of sch 1 to the CPA.
For the reasons set out at [41] above, the charge-sheet also complied with the common law requirements for a valid charge to which Keogh J referred,[25] namely, that it contained the essential factual elements of the offence and the legal nature of the offence.
[25]See [17] above.
The applicant’s reliance on Kypri[26] is misplaced. That case involved a charge under s 49(1)(e) of the Road Safety Act 1986. Section 49(1)(e) created multiple distinct offences by reference to a refusal by an accused to comply with a requirement made by a police officer under various subsections of s 55. The charge against Mr Kypri alleged that he had refused to comply with a requirement made by a police officer under s 55 but did not identify the nature of that requirement by reference to the subsection under which it was made. This Court held that non-compliance with a particular kind of requirement under s 55 was an essential element of the offence. Accordingly, as the charge did not identify the particular kind of requirement with which Mr Kypri was said not to have complied under one of the subsections of s 55, whether by express reference to the relevant subsection or otherwise, the Court held that the charge was defective. The Court said that the charge did not inform Mr Kypri of the nature of the offence alleged because it did not on its face identify the subsection of s 55 under which the police officer was said to have made the requirement.[27]
[26](2011) 33 VR 157.
[27]Kypri (2011) 33 VR 157, 162–3 [12]–[16].
The issue dealt with in Kypri does not arise in the present case. This is because, although the offence created by s 126(2) of the P&E Act can be committed by various distinct acts — in the sense that it covers contraventions of a planning scheme, permit or agreement under s 173, each of which may be contravened in different ways — the charge on its face informed the applicant of the precise act which was said to constitute the offence under s 126(2). That act was being the owner of land which was used in contravention of a planning scheme, namely, not having a planning permit for that use as required by the Planning Scheme.
In Baiada,[28] Robson AJA summarised some of the principles relating to the validity of a charge as follows:
[28](2015) 257 IR 204.
(a)at common law, the traditional function of the charge was to found the jurisdiction of the court to deal with the alleged offence;
(b)in more recent times, the charge is also to inform the defendant of the substance of the offence which he is called on to meet;
(c)schedule 1 of the CPA that specifies what a charge must state does not obviate the common law requirements as to a valid charge;
(d)a valid charge must specify all the elements of the offence that the defendant is alleged to have committed;
(e)the charge must specify the facts relied on to make out the legal elements of the charged offence, including the particular facts, matters or things alleged as the foundation of the charge;
(f)an invalid charge should be quashed by the Court unless validly amended;
(g)information on how the case is to be proved is not required to be included in the charge, but the facts matters or things to be proved must be included in the charge; … [29]
[29]Baiada (2015) 257 IR 204, 242–3 [157] (citations omitted). Ferguson and McLeish JJA also referred to some of these principles: see (2015) 257 IR 204, 208 [5], 210 [14]–[15].
For the reasons we have already discussed, principles (d), (e) and (g) set out in Baiada were satisfied in the present case.
We agree with the Council’s submission that the most likely explanation for the reference to s 126(2)(b) of the P&E Act, instead of s 126(2)(a), in Keogh J’s reasons is inadvertence. We have formed this view for the following reasons:
(a) The charges use the words ‘in contravention of’ the Planning Scheme, which adopt the words ‘in contravention of a planning scheme’ in s 126(2)(a), rather than the words ‘failure to comply with [a] planning scheme’ in s 126(2)(b).
(b) The Council did not, at any stage before Judge Montgomery or Keogh J, state that the charges were based on s 126(2)(b). On the contrary, the Council’s written submission in the County Court proceeding, which was before Keogh J, exclusively relied on s 126(2)(a). Further, in his exchanges with the applicant during the judicial review proceeding, Keogh J described the charges exclusively by reference to s 126(2)(a).
As we have concluded that the charge-sheet complied with sch 1 to the CPA, it is not necessary for us to consider the correctness of the judge’s conclusion that, even if the charge-sheet had not complied with sch 1, the charge-sheet would have been valid by operation of s 9(1).
Ground 2: Construction of P&E Act and Planning Scheme
The applicant submitted that Keogh J erred in not applying the principle of legality because he failed to give effect to an interpretation of the P&E Act and the Planning Scheme that ‘least impacts the Applicant’s common law rights to liberty and as the owner of an estate in fee simple’, an interpretation that was said to be ‘clearly open’.
The applicant contended that the principle of legality required Keogh J to interpret the P&E Act and the Planning Scheme in such a way that the impact on the applicant’s fundamental common law rights was minimal, if there was to be any impact at all. He submitted that although the purposes of the P&E Act relate to the enhancement of community values and the protection of community interests, it does not automatically follow that the applicant’s rights are curtailed or abrogated. This was said to be particularly so because the Council did not suggest that charging him under the P&E Act had ‘anything whatsoever to do with enhancing community values or protecting community interests’.
The applicant submitted that while the Planning Scheme may regulate the use of land, Keogh J erred in concluding that there is no particular restriction on that power, because the power is restricted by the principle of legality. According to the applicant, this is particularly so because the Planning Scheme is delegated legislation which cannot ordinarily curtail or abrogate fundamental common law rights. The applicant submitted that the principle of legality does not allow for an innominate use provision in a piece of delegated legislation to be utilised for the purpose of ‘arbitrarily creating a land use term which effectively prevents the Applicant from exercising his common law rights under threat of criminal sanction’.
In his written case, the applicant described the purpose of innominate use provisions in planning schemes as permissive rather than restrictive,[30] that is, to allow for proposed uses which do not fall within the defined uses in a planning scheme. This was said to be consonant with the applicant’s common law rights, community interests and the maxim that ‘that which is not forbidden is permitted’. In oral submissions, the applicant contended that, while it was lawful for a planning scheme to include an innominate use provision in the context of uses that are permitted, it was unlawful to use such a provision in the context of uses that are absolutely prohibited or prohibited without a planning permit. He contended that, where a use of land is to constitute a criminal offence, it must be specifically enumerated in the relevant planning scheme.
[30]The applicant relied on Cascone and Perplat in this regard. See the discussion of those cases at [37] and [38] above.
The Council submitted that Keogh J did not err with respect to the applicant’s common law rights as an owner of property in fee simple, or the principle of legality. In particular, the Council submitted that Keogh J properly applied the principles in Electrolux. According to the Council, the applicant’s submissions on Ground 2 are without foundation and misconceived.
We agree with the Council that Ground 2 is misconceived.
There is no doubt that the Victorian Parliament has power to impose restrictions on land use in this State in order to achieve particular legislative objectives, and thereby curtail common law rights associated with the ownership of land. Those objectives often involve the balancing of competing public policies. The principle of legality is based on a longstanding presumption that Parliament does not intend to abrogate or curtail common law rights and requires that, in order for the presumption to be displaced, a statutory intention to abrogate or curtail common law rights must be expressed in unmistakable and unambiguous terms or arise by necessary implication.[31] Where a statutory provision satisfies this requirement, the principle of legality does not authorise a court to give the provision a different meaning to that intended by Parliament in order to minimise its encroachment on common law rights. Nor does the principle authorise a court to second-guess Parliament’s balancing of competing public policies.
[31]Coco (1994) 179 CLR 427, 437–8.
The Planning Scheme, which had statutory force under the P&E Act, clearly delineated which uses of land were permitted without a permit, which uses were absolutely prohibited and which uses were prohibited without a planning permit. Absolute prohibition involves the greatest encroachment on common law rights. Prohibition without a permit is less restrictive in that an owner of land could deploy that land for a use within that category provided he or she obtained a planning permit. There is nothing unusual or inherently unreasonable in requiring a planning permit for some uses of land. The applicant could have applied to the Council for a planning permit to use the Land for the purpose of the deposit of soil and other related materials and the Council may have granted such a permit, perhaps subject to some conditions. But in any event, the encroachment on rights represented by the requirement for a planning permit was articulated in the clearest possible terms. There is no scope for the principle of legality to sustain a construction of the Planning Scheme, or the P&E Act, which deprives the statutory regime of that effect. To the contrary, such a construction would run counter to the clearly identified objects of the scheme.[32]
[32]Lee (2013) 251 CLR 196, 230 [56], 249–50 [126], 310 [313].
To the extent that the applicant submitted that the principle of legality demands that the uses for which a permit is required be individually specified, we reject the submission. The principle of legality demands clarity, not necessarily specificity. Here, for the reasons given, the limitation on the applicant’s right to use the land was unambiguously clear.
For the reasons we have set out under Ground 1, we reject the applicant’s submissions that the offence with which he has been convicted was established under subordinate legislation and that the innominate use provision is permissive rather than restrictive. There is no legal basis for the applicant’s submission that an innominate use provision can only be used lawfully in the context of permitted uses and that, in order for a use to be capable of constituting a criminal offence, it must be specifically enumerated in a planning scheme. Innominate use provisions serve a valuable purpose because it is impracticable for a planning scheme to list all prohibited and permitted uses.
As we have explained under Ground 1, the legislative scheme pursuant to which the applicant was convicted has its foundation in the P&E Act and its provisions are unambiguous. That scheme had the effect that an owner of land which was deployed for a use that required a planning permit in circumstances where no such permit was obtained committed an offence under s 126(2) of the P&E Act. As the scheme was unambiguous, it was effective according to its terms to restrict an owner’s use of his or her land and it was not open to Keogh J to give the scheme some other meaning which would be less restrictive on the owner.
In the present case, there is no doubt that the Planning Scheme prohibited the use of the Land for the purpose of the deposit of soil and other related materials without a planning permit. As it was not in dispute that the Land was deployed for that use without a planning permit, or that the applicant was the owner of the Land, Judge Montgomery was correct to convict the applicant of six offences under s 126(2) of the P&E Act and Keogh J was correct to dismiss the application for judicial review of those convictions.
Conclusion
For the reasons set out above, the application for leave to appeal has no real prospect of success.[33] Accordingly, it will be refused.
[33]Supreme Court Act 1986 s 14C.
19
8
0