Houghton v Bond - [2010] VSC 193

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8584 of 2009

ROBERT CLIFFORD HOUGHTON	Appellant
v
MURRAY CHARLES BOND	Respondent

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 April 2010
DATE OF JUDGMENT:	8 April 2010 (Ex tempore. Revised reasons published 11 May 2010).
CASE MAY BE CITED AS:	Houghton v Bond
MEDIUM NEUTRAL CITATION:	[2010] VSC 193

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CRIMINAL LAW – Alleged contravention of planning scheme – Removal of native vegetation without permit – Exemption where removal to the minimum extent necessary for construction, operation or maintenance of a farm structure, including a fence – Accused points to evidence of applicability of exemption – Informant fails to satisfy magistrate beyond reasonable doubt that exemption does not apply – Appeal by informant – Interpretation of exemption – Whether Magistrate’s finding open on the evidence – Appeal dismissed – Magistrates’ Court Act 1989, s 92 – Planning and Environment Act 1987, s 126(1) – Wellington Planning Scheme, clause 52-17.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr O P Holdenson QC with Ms N Collingwood	Maddocks
For the Respondent	Mr A Larkin	Sullivan Braham Pty Ltd

HIS HONOUR:

This is an appeal under the former s 92 of the Magistrates’ Court Act 1989 against an order made by the Magistrates’ Court at Sale in case number XO-3280173 on 27 July 2009. The learned magistrate dismissed two charges that had been laid in the alternative under s 126(1) of the Planning and Environment Act 1987 by the informant/appellant, Robert Clifford Houghton, an officer of the Wellington Shire Council, against the present respondent, Murray Charles Bond.

The first charge was that between 1 June 2008 and 31 July 2008 at Valencia Creek the defendant did develop land, namely road reserve adjacent to 170 Dows Road, Valencia Creek, in contravention of the Wellington Planning Scheme, contrary to s 126(1) of the Planning and Environment Act 1987:

“Particulars: You did remove native vegetation in contravention of clause 52.17 of the scheme.”

The second (or alternative) charge was that between 1 June 2008 and 31 July 2008 at Valencia Creek the defendant did develop land, namely road reserve adjacent to 170 Dows Road, Valencia Creek and did fail to comply with the Wellington Planning Scheme in contravention of s 126(1) of the Planning and Environment Act 1987:

“Particulars: You did fail to comply with clause 52.17 of the Scheme in that you did not have a planning permit to remove native vegetation.”

So far as relevant, s 126(1) of the Planning and Environment Act 1987 provides:

“(1)Any person who uses or develops land in contravention of or fails to comply with a planning scheme, or a permit, … is guilty of an offence.”

At the time of the alleged offences clause 52.17 of the Wellington Planning Scheme provided, so far as presently relevant:

“ 52.17 NATIVE VEGETATION
Purpose

To protect and conserve native vegetation to reduce the impact of land and water…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Houghton v Bond

Details

AGLC: Houghton v Bond [2010] VSC 193
Case: [2010] VSC 193
Decision Date: 8 April 2010 (Ex tempore. Revised reasons published 11 May 2010).

CaseChat Overview and Summary

The case of Houghton v Bond involves a dispute regarding an alleged contravention of a planning scheme. The defendant, Houghton, was accused of removing native vegetation without a permit. The specific exemption in question allowed for the removal of vegetation to the minimum extent necessary for the construction, operation, or maintenance of a farm structure, including a fence. Houghton argued that the exemption applied to his actions, presenting evidence to support this claim. The informant, Bond, was tasked with proving beyond reasonable doubt that the exemption did not apply. However, the informant was unable to meet this burden of proof. Following the acquittal, Bond appealed the magistrate's decision, challenging the interpretation of the exemption and the magistrate's findings.

The legal issues at the heart of the case centred on the interpretation of the exemption clause within the planning scheme and whether the magistrate's decision was open to the evidence presented. The court had to determine whether the magistrate's findings were justified based on the evidence and whether there was any error in the application of the exemption clause. The crux of the appeal lay in the interpretation of the exemption and whether it applied to the defendant's actions. The court's task was to review the magistrate's decision and determine if it was open to the evidence, ensuring that the interpretation of the exemption clause was correctly applied.

The court found that the magistrate's decision was open to the evidence and correctly applied the exemption clause. The evidence presented by Houghton was sufficient to support the magistrate's finding that the exemption applied. The court held that the informant had not satisfied the burden of proof required to overturn the magistrate's decision. Consequently, the appeal was dismissed. The court's reasoning emphasised the importance of correctly interpreting the exemption clause and ensuring that the evidence adequately supports the findings made by the magistrate. The decision underscores the need for careful consideration of the evidence and the correct application of planning scheme provisions in such cases.

The final orders of the court confirmed the dismissal of the appeal, upholding the magistrate's decision. The court's judgment emphasised the importance of the evidence presented and the correct interpretation of the exemption clause. The decision reinforces the principle that the informant must prove beyond reasonable doubt that an exemption does not apply, and in this case, the informant had failed to meet this burden. The court's ruling ensures that the magistrate's findings, supported by the evidence, are upheld unless there is a clear error in the application of the law.

Orders