Rizzuti v Rockdale City Council
[1999] NSWLEC 168
•25 June 1999
Land and Environment Court
of New South Wales
CITATION:
Rizzuti v Rockdale City Council [1999] NSWLEC 168
PARTIES
APPLICANT
Ernesto RizzutiRESPONDENT
Rockdale City Council
NUMBER:
10716 of 1998
CORAM:
Sheahan J
KEY ISSUES:
Section 56A Appeal :- function of the Court - failure to take into consideration
LEGISLATION CITED:
Land & Environment Court Act 1979
DATES OF HEARING:
06/25/1999
EX TEMPORE JUDGMENT DATE:
06/25/1999
LEGAL REPRESENTATIVES:
RESPONDENT
APPLICANT
Mr E Rizzuti in person
Ms J Hewitt
SOLICITORS
Abbott Tout
JUDGMENT:
IN THE LAND AND Matter No: 10716 of 1998
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 25 June 1999
Applicant
v
ROCKDALE CITY COUNCIL
Respondent
JUDGMENT
This appeal
1. This case involves an appeal, and an associated Notice of Motion, the appeal having been brought pursuant to s 56A of the Land & Environment Court Act 1979 by the applicant Mr Rizzuti against the decision taken by Senior Commissioner Jensen on 2 February 1999 dismissing the applicant’s Class 1 appeal and directing that he should remove existing metal sheeting from the side of a carport structure, at the premises known as 56 Fairview Street, Arncliffe, which has been the applicant’s home since June 1971.
2. In making those orders, Senior Commissioner Jensen noted that the respondent Council was prepared to consider a development application proposing a high side return fence that complied with the requirements and objectives of the relevant Council Code. Such a fence would be located on the boundary and be free-standing and independent of the carport structure.
3. As I have repeatedly tried to explain to the applicant this morning, it is not the function of the Court in an appeal such as this to deal other than with the precise issue before it, namely, whether Senior Commissioner Jensen made an appealable error of law in determining the matter before him.
4. This appeal against the Commissioner’s decision was filed on 23 February 1999. The applicant is unrepresented and his Notice of Appeal sets out four grounds of appeal, namely:
(1) Commissioner Law did not take into account the recording where it could be heard that Rizzuti’s neighbours were saying they wanted to kill him.
(2) Commissioner Law did not take into account that Rizzuti’s neighbours sent the contractor away as they do not want a fence, because they want to cause Rizzuti trouble. This has been happening with the aide of Rockdale Council inspectors.
(4) Commissioner Law did not take into account that Rockdale Council’s representative, while in the witness box, was unable to answer when Rizzuti showed him his photos. All documentation available shows that Rockdale Council has always gone against Rizzuti.(3) Commissioner Law did not take into account that the photographs clearly show that in fact it is a fence. But since there is also a car-port involved, Rockdale Council took the opportunity of getting things wrong and causing, as usual, trouble for Rizzuti.
5. I take it that whenever the applicant refers to “ Commissioner Law ” he is referring to Senior Commissioner Jensen.
6. The notice of appeal was supported by an affidavit filed on 23 February 1999 but stated to have been sworn the following day. Among some extravagant remarks, Mr Rizzuti accuses his neighbours of waging a “ violent campaign … with the aim of perhaps killing him ”. He asserts that “ Rockdale Council should be investigated and closed down because it is made up of perjurers and people without civic conscience. Many of them are paid to instigate families to fight one another ”. The Council is accused of allowing “ those animals ” to continue harassing him, and it appears that this epithet is directed to the Saad family who have been his next door neighbours since 1983.
7. On 7 April 1999 the applicant filed a document entitled “ Supplementary Affidavits ” stated to have been sworn on 7 March 1999. Voluminous documentation was attached to the affidavit and those documents appear to deal primarily with the history of the disputation between Mr Rizzuti and the Saad family and a series of complaints to and against various public authorities for taking no action to assist him with his difficulties in this regard. Some of this material dates back as far as 20 years ago (e.g. the Ombudsman’s letter at folio 22). Nothing has been placed before the Court to indicate the relevance of much of this material to the precise question before the Court pursuant to s 56A. However, the affidavit itself makes two complaints which I have taken to be fifth and sixth grounds of appeal, namely:
(6) Commissioner Law did not take into account that Mr Rizzuti was pointing out that the only solution was a Court Order for Mr Rizzuti to move his house elsewhere, since both his Arab neighbours and Rockdale Council seem to take pleasure in complaining about anything he does.(5) Commissioner Law did not take into account the telephone conversation between Health Inspector Mr Graeme Harlor and Mr Rizzuti which was recorded on 20.02.1996 when Inspector Graeme was called by the Saads, the world’s biggest perjurers, who claimed that Mr Rizzuti’s garbage bin stank. Mr Rizzuti showed Commissioner Law two photographs which showed clearly that his garbage bin does not stink. On Mr Rizzuti’s insistence Commissioner Law read the last of the five page conversation between the former and Inspector Graeme which clearly proves that Rockdale Council wants to have Mr Rizzuti killed.
8. From the documents filed by Mr Rizzuti the Court therefore deduces that he asserts six grounds of appeal, in that the Senior Commissioner made an error of law in failing to take into account :
(1) a recording of some threats allegedly made against the applicant and his family by the neighbours.
(2) the sending away of a contractor by the neighbours.
(3) various photographs showing the difference between fence and carport structures.
(4) shortcomings in Council’s oral evidence.
(5) an allegedly relevant telephone conversation with a Council officer.
(6) Mr Rizzuti’s submission that the Senior Commissioner should order that he move his house elsewhere.
9. On 15 June 1999, the solicitors for the respondent filed a Notice of Motion seeking to have the s 56A appeal struck out “ on the basis it discloses no error of law ”. The Notice of Motion also sought costs.
10. Talbot J, on 22 June 1999, stood over the Notice of Motion to the appointed hearing date for the s 56A appeal, namely today, on the basis that the Notice of Motion addressed the heart of the appeal itself.
The Class 1 proceedings
11. I now want to turn my attention to the Class 1 proceedings themselves.
12. On 7 September 1998 Council determined to refuse Mr Rizzuti’s development application for a “ carport barrier ”, which it described as being “ for the installation of a side metal wall to the existing carport ”. The three reasons advanced for the refusal were:
1. The proposal does not comply with Council’s policy for the erection of a carport within the front building alignment.
2. The proposal will impact on the streetscape.
3. The proposed wall will detract from the appearance of the existing carport.
13. Mr Rizzuti’s Class 1 application was filed on 20 October 1998.
14. The Statement of Issues filed identified the following five issues:
1. The proposal does not comply with Council’s policy for the erection of a carport within the front building alignment.
2. The proposal will have an adverse impact on the streetscape.
3. The proposal will have an adverse visual impact.
4. The proposed wall will detract from the appearance of the existing carport.
5. Concerns of objectors.
15. The Court has had available to it the transcript of the proceedings on 2 February 1999, and a perusal of it indicates that despite the difficulties of the process, the Senior Commissioner extended to the unrepresented litigant substantial latitude. Briefly summarised, the proceedings ran as follows:
16. As is usual in a Class 1 appeal, Ms Hewitt for the Council introduced the matter in some detail and tendered various documents including some suggested draft conditions, one of which required the removal of the then existing sheet metal screen. Mr Michael Giddey, a Health and Building Surveyor with Rockdale City Council was called to give oral evidence. Mr Rizzuti was given the opportunity to cross-examine him.
17. The transcript reports a lengthy and substantial exchange between the applicant and the Senior Commissioner over which issues were truly relevant to the matter before him.
18. The Senior Commissioner continuously pleaded with Mr Rizzuti to concentrate on the precise issue, not the general nature of his problems with his neighbours. In this respect, among other comments, I refer to the transcript at page16 (lines 24ff), page 16 (lines 44 ff), and page 17 (lines 2ff).
19. During the applicant’s case itself, there were some relevant exchanges between the applicant and the Senior Commissioner and I refer here to the transcript at pages 21 (lines 45ff) and 23 (lines 5ff).
20. After a further exchange on some relevant matters, the Senior Commissioner said (at T23, L56ff):
Mr Rizzuti if you’re sort of suggesting in a roundabout fashion that you want to build something that might be acceptable to the Council then you can certainly make an application showing them something that they might be prepared to accept. But at the moment all I’ve got before me is the sheeting that you’ve put along the side of your carport which you appear to be asking the Court to approve forever. That’s what’s before me.
21. The Senior Commissioner then invited the solicitor for the Council to suggest some orders and I am quoting here from transcript (at T24 L33-40):
… which would ensure that the material that is presently on the side of the carport is removed, but providing Mr Rizzuti with an opportunity to approach the Council with an application involving something that might be seen as aesthetically acceptable and perhaps comparable with the fencing on the other side of the house that he’s been at pains to show the Court .
22. Before the Senior Commissioner delivered his judgment, and pronounced the orders to which I have already referred, the applicant again asked for an order that the house be moved.
23. The Court notes from the transcript that the Senior Commissioner allowed the tender of the applicant’s bundle of photographs, that he perused many documents which are now before the Court, and that he listened to at least one tape recording. The Commissioner allowed the tape to be played (T12) and said (T13) that while it was “ very interesting ” it was “ really not very much help to me that you are having a dispute with your neighbours ”.
24. As Ms Hewitt said before the Senior Commissioner (at T13, L10):
We accept that he obviously has a long running dispute with his neighbours and that there is some - actually it seems to be fairly bad blood between them and they’ve had court proceedings regarding the fence and assaults and things like that and that might be Mr Rizzuti’s reason for having the screen, but he didn’t say that in his statement of environmental effects. He talked about scratching and things like that, scratching of cars by trees. It’s obviously a difficult situation but it’s not what we’re really here to talk about today .
25. The judgment delivered by Senior Commissioner Jensen was fairly brief and, omitting the orders to which I have already referred, stated as follows:
I will make some orders, but I say as a preamble that it is apparent that what has been constructed to the side of a carport at No.56 Fairview Street, Arncliffe, is clearly inconsistent with the Council’s code and in terms of what is possible to be seen in photographs, an inappropriate way of providing the form of privacy that Mr Rizzuti clearly believes he needs.
It is considered that what is there is visually unsightly and clearly is not a proper form of screening or protection for the longer term. That is not to say that some other sort of design of an infill would not be possible, but that is a matter for the Council, and to be based upon an application which properly shows what is proposed to be done.His reasons for installing this material and his reasons to ask the Court to retain it are that he has a long-standing dispute with his neighbours. He fears them and he believes that he needs a special form of boundary fencing to ensure that he is protected. The Court is of the opinion that there may be a justifiable reason for the Council to treat an application for fencing more sympathetically than perhaps its code would otherwise dictate. In that context there is before the Court some suggested advice to the applicant which would make it possible for him to make an application in such a form. However, the Court has before it a very simple matter and that is whether the metal sheeting that has been installed without consent to the structure should be retained in its present form? The answer shortly is no.
Consideration
26. After examining all the documentation and carefully reading through the transcript, I have had the benefit of oral submissions from both parties this morning.
27. I have come to the conclusion that while the way in which the proceedings were conducted and concluded before the Senior Commissioner was somewhat extraordinary, it certainly does not disclose any error of law on the part of the Senior Commissioner.
28. Mr Rizzuti would like s 56A to enable me to hear the whole matter again but I, unfortunately for him, am not empowered to do so. I have endeavoured to satisfy his concerns by a thorough review of the proceedings before the Senior Commissioner, consistent with the principles in Coles v Woollahra (1986) 59 LGRA 133 and Brimbella Pty Ltd v Mosman (1985) 79 LGERA 367.
29. Senior Commissioner Jensen would have made an appealable error of law if he had denied Mr Rizzuti procedural fairness, or if he had misdirected himself as to the question he had to determine. See Azzopardi v Tasman UEB (1985) 4 NSWLR 139, and Craig v South Australia (1995) 184 CLR 163.
30. It is well established that an appellate court will not interfere with a decision based purely on a planning judgment. This applicant may indeed have some legal disputes with his neighbours and the Council, but they are not the province of the Court in this appeal, nor the one before the Senior Commissioner. This Court is charged with giving “ proper, genuine and realistic ” consideration to any development application brought before it. North Sydney v Ligon 302 (No.2) (1996) 93 LGRA 23 (per Cole JA at 28). In order to discharge that duty the Court may inform itself by means it considers, in its discretion, the best. See Land & Environment Court Act 1979 s 38(2).
31. I conclude that the Senior Commissioner discharged his duties properly in the appeal before him. He allowed the applicant to bring before him everything he thought important, he rejected no tenders, and he then proceeded to sift out of all that material those items he considered relevant .
32. Misattribution of the relative weight to accord to a relevant consideration becomes an error of law only if it infects the decision to an extent that the decision is one to which, on the facts, no reasonable mind could have come. Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 (Mason J at 41ff); Tabag v Minister for Immigration (1982) 45 ALR 705 (Jenkinson J at 727); and Randwick Council v Manousaki (1988) 66 LGRA 330 (Clarke JA at 334-5).
33. I can find no such error in the Senior Commissioner’s handling of this case.
34. In specific reference to the six grounds of appeal, I note:
(1) The tape was played but not put in evidence. There is no evidence of its relevance to the merit issues before the Senior Commissioner.
(2) The contractor was involved in the fence, not the carport structure which was all that was involved in the proceedings before the Senior Commissioner.
(3) The photographs were in evidence and were taken into account. There is no evidence of misattribution of weight by the Senior Commissioner.
(4) The claim in respect of Mr Giddey’s oral evidence appears contrary to the transcript (at T13-14). The fact that a witness cannot answer a question does not render irrelevant or of no value the answers he gives to other questions. I also note that the transcript records no submission having been made regarding that witness’s credit.
(5) At T19 the Senior Commissioner is seen to read some of the transcript of the particular telephone conversation and to have ruled that it was not relevant to the matter before him. Its tender was not pressed, and I can find no grounds upon which I could come to a contrary view on its relevance.
(6) The issue of possible removal of the applicant’s house is raised at T19 and again at T25-26, but such an order was not within the power of the Senior Commissioner in the matter before him.
35. The Senior Commissioner seems to me to have retained the necessary focus on the real questions of fact and principle before him. Even if I may have conducted those proceedings differently myself - and I can see no way in which I would have done so - I cannot interfere with his judgment in the absence of an error of law. House v The King (1936) 55 CLR 499 at 505.
36. This appeal must, therefore, be dismissed. The dismissal of the appeal deals with par 1 of Council’s Notice of Motion, which sought the striking out of the appeal on the basis that it disclosed no error of law. In coming to my view it has been useful for me to review my analysis of the factual material and relevant principles in another s 56A appeal involving an unrepresented applicant/appellant and a strike-out Notice of Motion . That is the case of Fokas v Kogarah (No.20001 of 1998), my judgment being delivered on 25 June 1998.
37. The only remaining question is that in par 2 of the Notice of Motion, namely the costs the respondent incurred in respect of bringing that Notice of Motion. As the Notice of Motion dealt only with the substantive issues of the appeal, and lay, especially unrepresented, litigants cannot be expected to exercise sophisticated discernment between matters of fact and law, when they are aggrieved by a Court’s decision, I order that each party pay its own costs in regard to the Notice of Motion.
38. However, I see no reason to deny the Council its costs of the appeal itself which, as usual, should follow the event.
39. The formal orders of the Court will, therefore, be:
(1) The applicant’s appeal is dismissed.
(2) The applicant is ordered to pay the respondent’s costs of the appeal.
(3) The respondent’s Notice of Motion is discharged.
(4) Each party will pay its own costs of the Notice of Motion.
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