Kitanovski v Melton City Council
[2016] VSC 474
•11 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2015 06304
| MENDO KITANOVSKI | Plaintiff |
| v | |
| MELTON CITY COUNCIL (IAN RYAN) | First Defendant |
| and | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 August 2016 |
DATE OF JUDGMENT: | 11 August 2016 |
CASE MAY BE CITED AS: | Kitanovski v Melton City Council & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 474 |
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ADMINISTRATIVE LAW – Judicial review – Application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 – Appeal from judgment of the County Court convicting plaintiff of six charges under the Planning and Environment Act 1987 – Plaintiff convicted of depositing soil on his property in contravention of the Planning and Environment Act 1987 and the Melton Planning Scheme – Procedural fairness – Validity of the charges laid – Plaintiff’s common law rights as owner of property in fee simple restricted by operation of the Planning and Environment Act 1987 – Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 cited – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| Plaintiff appeared in person | ||
| For the Defendants | Mr R Appudurai | Russell Kennedy |
HIS HONOUR:
Introduction
On 6 June 2014 the plaintiff was charged by Mr Ian Ryan, planning enforcement officer of the first defendant, with a number of offences under the Planning and Environment Act 1987 (‘the Act’). On 30 April 2015 the plaintiff was found guilty in the Sunshine Magistrates’ Court on a total of 18 charges. The plaintiff appealed those convictions to the County Court. On 14 October 2015, after a contested hearing before that court, the plaintiff’s appeal against charges 1, 3, 5, 7, 9, 11, 13, 15, 17, 19, 21 and 23 was allowed and those charges were dismissed. Charges 31, 32, 33, 34, 35 and 36 (‘the charges’) were found proven, and the plaintiff’s appeal against conviction in respect of those charges was dismissed.
The plaintiff now brings an application for review of the County Court judgment pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). By an originating motion filed 14 December 2015 the plaintiff seeks an order quashing the convictions and dismissing each of the charges.
The three issues raised by the plaintiff’s grounds in the originating motion are whether:
(a) there was a lack of procedural fairness afforded the plaintiff by the trial judge during the hearing in the County Court;
(b) the plaintiff having taken responsibility for the acts upon which the charges were based, separate charges brought against the plaintiff’s brother should be dismissed; and
(c) the trial judge erred in the construction of the Act and the Melton Planning Scheme (‘the Planning Scheme’).
Background
The plaintiff and his brother Slobodan Kitanovski were, at the time of the offences alleged by the first defendant, registered proprietors as tenants in common of the property at 627–703 Plumpton Road, Plumpton in the State of Victoria (‘the property’). The charges allege that on six different dates in February 2014 the property was used for the purpose of the deposit of soil and other related materials. In the proceeding before me the plaintiff takes no issue with the allegation that the land was used in this fashion on those dates.
Ground 1 - Procedural fairness
The plaintiff made what seemed to be a very limited complaint that there had been a lack of procedural fairness accorded to him by the trial judge. During oral submissions the plaintiff appeared content to step away from this ground. However, in the end he persisted with it. The three particular grounds of complaint were that the trial judge failed to:
(a) appropriately hear from the plaintiff on the matter raised by the plaintiff that the charges brought by the first defendant failed to disclose an offence known to law;
(b) appropriately hear from the plaintiff on the matter raised by the plaintiff that the charges brought against the plaintiff’s brother (as co‑owner of the property) should be dismissed; and
(c) provide an appropriate level of procedural guidance and assistance to the plaintiff in relation to the plaintiff’s submissions.
The plaintiff did not take me to any particular part of the transcript of the County Court appeal in support of this ground, other than to state that the trial judge failed to deal at the commencement of the hearing with the plaintiff’s submission that the charges were invalid. Reliance was placed on the judgment of Bell J in Tomasevic v Travaglini & Anor,[1] in which his Honour stated:
A judge has a fundamental duty to ensure a fair trial by giving due assistance to a self-represented litigant, whilst at the same time maintaining the reality and appearance of judicial neutrality. The duty is inherent in the rule of law and the judicial process. The human rights of equality before the law and access to justice specified in the International Covenant on Civil and Political Rights are relevant to its proper performance. The assistance to be given depends on the particular litigant and the nature of the case, but can include information about the relevant legal and procedural issues. Fairness and balance are the touchstones.[2]
[1](2007) 17 VR 100, 132 [144]-[148].
[2]Ibid [155].
The first defendant submitted that when the transcript of the proceeding is viewed in its entirety, it is clear that the plaintiff was accorded procedural fairness in the hearing of the appeal and in the decision making process.[3] The first defendant relies on the following in particular:
[3]South Australia v O’Shea (1987) 163 CLR 378, 389 (Mason CJ).
(a) at the commencement of the hearing the trial judge explained the hearing process, and asked the plaintiff whether he was content to appear without a lawyer;
(b) the plaintiff raised as a preliminary point the validity of the charges. In response, the trial judge explained to the plaintiff that those were submissions the plaintiff could make after evidence in the case had been heard;
(c) on the first day of the hearing the trial judge required the first defendant to clarify the way in which it was putting the case against the plaintiff, and at the commencement of the second day of the hearing the trial judge clarified what facts were in dispute;
(d) at stages throughout the hearing, for instance in relation to the tender of documents, or the issue of whether the charges were brought within time, or whether the plaintiff was to give evidence or simply make submissions in relation to the charges, the trial judge explained the issue to the plaintiff and provided him an opportunity to respond to the issue raised;
(e) once the case was closed the trial judge, having indicated that he had read the plaintiff’s written submissions, asked the plaintiff whether there were any further oral submissions he wished to make, and raised with the plaintiff specific issues the plaintiff may have wished to address; and
(f) on the final day of the hearing, in his judgment, the trial judge dealt with arguments raised by the plaintiff in written and oral submissions, including as to the validity of the charges, and found the charges proven.
I accept the argument made by the first defendant that a reading of the whole of the transcript of the County Court hearing discloses that procedural fairness was afforded to the plaintiff by the trial judge in the conduct of that hearing. In the circumstances, I reject ground 1.
Ground 2 - The charges against the plaintiff’s brother
Slobodan Kitanovski was co‑owner of the property with the plaintiff at the time the alleged offences occurred. He was charged with some similar offences by the first defendant. A number of those charges were found proven by the trial judge during the County Court hearing from 12 to 14 October 2015. However, there has been no application by Slobodan Kitanovski for review of that County Court judgment.
At the commencement of the hearing in this Court I explained to the plaintiff that in those circumstances the charges proven against his brother were not before me, and that accordingly the judgment of the trial judge in the County Court finding certain charges against Slobodan Kitanovski proven could not be subject to review by this Court. I invited the plaintiff to make any submission that he wished in relation to ground 2. However, the plaintiff conceded that in the circumstances he could not proceed with ground 2.
Ground 3 - Validity of the charges
In written and oral submissions the plaintiff advanced three separate arguments under the general heading of the validity of the charges, namely:
(a) The charges offended clause 3(2) of Schedule 1 of the Criminal Procedure Act 2009 (Vic) (‘the CPA’), in that they did not describe the offence in the words of the provision creating the offence, or in similar words.
(b) The function of the ‘innominate use’ category in the list of uses within section 2 of clause 35.04-1 of the Planning Scheme was ‘… to allow for — not restrict — uses which are not entirely covered, but are similar to, the land use terms listed in section 2.’ As a consequence, the innominate use category was not an indefinite group of further permitted uses, and could not be used as the foundation for prosecution of a landowner for failure to obtain a permit.
(c) Whilst the plaintiff accepted that his common law rights to use his land ‘… may be curtailed somewhat by section 6(2)(b) of the Act’, in the absence of any unmistakable and unambiguous language, the plaintiff’s right to deposit soil on his land is not curtailed at all by the Act or the Planning Scheme. Because that is so, the charge of failing to obtain a permit in respect of that use is invalid and must fail.
As can be seen, this attack by the plaintiff on the validity of the charges goes beyond ground 3 in the originating motion. However, I will treat these arguments as being available in this proceeding. I will deal with the arguments in turn.
Clause 3(2) of the CPA
Pursuant to s 5 of the CPA, a criminal proceeding is commenced by filing or signing a charge sheet in accordance with s 6 of that Act. Subsections 6(1)(a) and 6(3) require a charge sheet in writing and signed by the informant to be filed with a Registrar of the Magistrates’ Court, and to comply with Schedule 1 of the CPA. Schedule 1 requirements include that a charge must:
·state the offence that the accused is alleged to have committed; and
·contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.
Clause 3(2) of Schedule 1 provides, with respect to a statutory offence, that a statement of the offence sufficiently states the offence allegedly committed if it identifies the provision, and describes the offence in the words of the provision creating the offence or in similar words.
Section 9 of the CPA states that a charge sheet is not invalid by reason only of a failure to comply with Schedule 1.
The common law requires that, to be valid, a charge must contain the essential factual elements of the actual offence, in addition to the legal nature of the offence.[4]
[4]Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 557 [26]; Baiada Poultry Pty Ltd v Inspector Mark Kenneth Glenister & Anor [2015] VSCA 344, [5] (Ferguson and McLeish JJA), [157] (Robson AJA).
Offences and penalties are dealt with in Division 2 of Part 6 of the Act, which includes s 126(2) and relevantly provides:
(2) The owner of any land is guilty of an offence if—
…
(b)there is any failure to comply with any planning scheme, permit or agreement under section 173 applying to the land.
The relevant parts of the Planning Scheme were proved by certificate pursuant to ss 140 and 141 of the Act. The Planning Scheme includes clause 35.04-1, which is a table of uses in the Green Wedge Zone. Section 1 of the table is an exclusive list of uses in respect of which a permit is not required. Section 3 of the table is an exclusive list of uses which are prohibited. Section 2 is an inclusive list of uses in respect of which a permit is required, and includes as the final use in this section:
any other use not in section 1 or 3.
The charges are in identical terms, save for the date on which the contravention is said to have occurred. Charge 31 reads:
The Accused was the owner of land located at 627–703 Plumpton Road, Plumpton in the State of Victoria when, on or about, 6 February 2014, that 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.
The charge specifies that it relates to an offence alleged in accordance with s 126(2) of the Act.
The charges make specific reference to the particular use made of the property without a permit, that is, ‘… the deposit of soil and other related materials …’. I understand the plaintiff’s complaint to be that because there is no reference to that particular use to be found in either s 126(2)(b) of the Act or in clause 35.04-1 of the Planning Scheme, a charge which includes reference to that use is not a charge which describes the offence ‘… in the words of the provision creating it, or in similar words,’ and is therefore invalid.
For the following reasons I disagree. First, the charge paraphrases s 126(2)(b) of the Act. Second, the charge clearly identifies the planning scheme relied upon, and the particular clause of the planning scheme which it is said has been contravened, being clause 35.04-1. Third, it was necessary for the informant to include in the charge reference to the particular use said to be made of the property without a permit, even though that use is not one of the uses specifically identified in the Planning Scheme. Because it makes reference to the failure to obtain a permit, the charge directs attention to section 2. It was the defendant’s case at trial that the particular use alleged falls within the final ‘innominate use’ category in section 2. In order to comply with the common law requirements, it is necessary that an informant wishing to commence such a proceeding clearly identify the actual use made without a permit, rather than use the words of the innominate use category. Not to do so would leave a person charged to wonder what case it was he or she had to meet.
Finally, I note that s 9(1) of the CPA provides that a charge is not invalid by reason only of a failure to comply with Schedule 1. I have concluded that the charge meets the requirements of the CPA. If I am wrong, and it were thought there were some material inconsistency between the wording of the charge and the provisions creating it, I would conclude that the charge is not thereby rendered invalid pursuant to the provisions of the CPA.
The charges contain the essential elements of the offence alleged, state the legal nature of the offence in the terms of s 126(2)(b) of the Act and clause 35.04-1 of the Planning Scheme and make plain to the plaintiff the offence with which he is charged. Accordingly, the charge complies with the common law requirements.
Interpretation of clause 35.04-1 of the Planning Scheme
The first defendant brought the charges on the basis that the ‘deposit of soil and other related materials’ was a use of the property which fell within the innominate use category in section 2 of clause 35.04-1. It was argued that because no permit was obtained by the plaintiff before that use was made of the property, an offence was committed pursuant to s 126(2)(b) of the Act. The trial judge accepted this case as put by the first defendant and found the charges as proven.
The plaintiff submits that this case must fail because it relies upon an interpretation of the Act and of section 2 of clause 35.04-1 which is not open for the following reasons. First, the plaintiff argued that if the innominate use category were to be used to capture every other use of property not listed in sections 1, 2 or 3, then the listing of specific uses in section 2 for which a permit is required would serve no purpose. Second, the interpretation of the innominate clause contended for by the first defendant would lead to an impermissibly arbitrary interference with the plaintiff’s common law rights as owner of an estate in fee simple. Third, the ‘better view of the function’ of the innominate category is ‘to allow for — not restrict —uses which are not entirely covered, but are similar to, the land use terms listed in section 2’. On this point, the plaintiff called in aid the decisions of this Court in Cascone v City of Whittlesea[5] and St Kilda City Council v Perplat Investments Pty Ltd.[6]
[5](1993) 11 AATR 175 (‘Cascone’).
[6](1990) 4 AATR 358 (‘Perplat’).
For the following reasons I disagree. One purpose of clause 35.04-1 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.
Second, I reject the plaintiff’s argument that the construction of section 2 contended for by the first defendant is an impermissible interference with the common law rights of the plaintiff as the owner of an estate in fee simple. I will address this argument further under the next heading.
Third, on a proper reading, the decisions in Cascone and Perplat do not support the argument advanced by the plaintiff. In Cascone, Ashley J (as he then was) quoted in approval, and commented on, the judgment of Southwell J in Perplat as follows:
Southwell, J said this at p. 393:
“But it must steadily be borne in mind that the planning scheme does not purport to cover every possible use to which land or buildings might be put. The use of the words ‘and any other purpose’ in column 4 of the table to cl 7 of the scheme indicates that the scheme does not purport to be all encompassing. It is therefore impermissible to regard a proposed use as necessarily coming within one of the definitions in the scheme ...”
…
No doubt provision for innominate uses would be otiose if the three sections of Clause 110 of the Scheme were all-encompassing; but plainly, as in Perplat, they are not.[7]
[7]Cascone (1993) 11 AATR 175, 188-189; see also 190.
There was no argument advanced by the plaintiff before me that the purpose of the use of depositing soil was ancillary to some other dominant permitted use such that there was no contravention by the plaintiff of the Planning Scheme and the prosecution should fail. In any event, that was a factual argument not available to the plaintiff in this proceeding. The decisions in Cascone and Perplat make clear that the function of the innominate category in section 2 of clause 35.04-1 is as contended by the first defendant, that is the planning control of uses of land other than those uses specifically listed in sections 1, 2 or 3 of clause 35.04-1. Accordingly, the argument of the plaintiff on this point fails.
Common law rights
The plaintiff contends that his right as owner of the property in fee simple carries with it fundamental common law rights as to the unrestricted manner in which he might use the property.[8] Such fundamental common law rights, the plaintiff argued, can only be abrogated or curtailed in circumstances and to the extent that legislative intent is ‘… clearly manifested by unmistakable and unambiguous language.’[9]
[8]Commonwealth v New South Wales [1920–1923] 33 CLR 1, 42 (Isaacs J).
[9]Coco v The Queen (1994) 179 CLR 427, 437–8.
However, the generality of this assertion of principle requires some qualification. In Electrolux Home Products Pty Ltd v Australian Workers’ Union,[10] Gleeson CJ said:
Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language … However … modern legislature regularly enacts laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied.
[10](2004) 221 CLR 309, 328 [19]; see also Lee v New South Wales Crime Commission (2013) 302 ALR 363, [313], [317] (Gageler and Keane JJ).
It is necessary to set out various sections of the Act and of the Planning Scheme. Relevant sections of the Act are 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.
3 Definitions
(1) In this Act—
…
land includes—
…
(c)any estate, interest, easement, servitude, privilege or right in or over land;
…
use in relation to land includes use or proposed use for the purpose for which the land has been or is being or may be developed;
The objectives are set out in s 4 of the Act and include:
(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.
Part 2 of the Act deals with planning schemes, and includes s 6 which in part provides:
(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;
The plaintiff accepts that his rights, as owner of the property in fee simple, to use the property can be and are curtailed or restricted by the Act. In giving this concession, the plaintiff makes specific reference to s 6(2)(b) and to the Planning Scheme. The argument which the plaintiff makes is that because the use ‘deposit of soil and other related materials’ is not specifically listed in section 2 of clause 35.04-1 of the Planning Scheme as a use in respect of which a planning permit is required, legislative intent to curtail that right has not been ‘… clearly manifested by unmistakable and unambiguous language’, and the plaintiff’s right to use the property in that fashion is unrestricted by the Act and the Planning Scheme, and no permit is required.
For the following reasons I reject the plaintiff’s argument. First, as can be seen from sections 1 and 4, the design of the 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 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 plaintiff. In other words, if that use appeared in the list of specific uses in section 2 of clause 35.04-1 then the plaintiff, 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, as detailed above, 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 Act and the Planning Scheme. What is involved is infringement of the plaintiff’s right to use his property in one particular fashion in circumstances in which the plaintiff agrees that his rights to use the property are otherwise properly restricted by the provisions of the Act and the Planning Scheme. It is a significantly more modest restriction or infringement of rights than was contended by the plaintiff.
I find against the plaintiff on ground (c) in the originating motion.
Conclusion
For the above reasons I consider the plaintiff’s application to review the County Court judgment should be dismissed. I will hear the parties as to the form of the orders and as to costs.
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