SALIBA and TOWN OF BASSENDEAN

[2014] WASAT 140

SALIBA and TOWN OF BASSENDEAN [2014] WASAT 140

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 140
Act:	LOCAL GOVERNMENT ACT 1995 (WA)
Case No:	DR:202/2014	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MS L WARD (MEMBER)	Delivered:	21/10/14
No of pages:	14	Judgment Part:	1 of 1
Result:	Decision under review varied by extending period for compliance with relevant notice until 21 days from date of order
Category:	B
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Parties:	CARMEL CHARLES SALIBA TOWN OF BASSENDEAN
Catchwords:	Local government ­ Review of issue of tidy-up notice ­ Whether entry to land illegal
Legislation:	Interpretation Act 1984 (WA), s 76 Local Government Act 1995 (WA), s 3.25, s 3.28, s 3.31, s 3.32, Sch 3.1 Div 1 Pt 3, Div 3 Pt 3, cl 5A, cl 5A(2)
Case References:	Nil
Orders	On the application determined on the documents by Member Lisa Ward, it is on 21 October 2014 ordered that:  ,1. The decision of the respondent to give a notice under s 3.25 of the Local Government Act 1995 (WA) to the applicant on or about 20 May 2014 is varied by extending the period allowed to comply with the notice until 21 days from the date of this order.
Summary	The applicant sought review of a local government notice requiring the removal of numerous items from land which he owned and which was considered by the local government to be untidy.,The applicant had progressively removed various items before the application was determined.  ,In relation to the items which remained, he expressed a right to retain many, principally on the ground that they were required for the purpose of home renovations.  He also claimed that the local government officers had been vindictive towards him and entered his property illegally.,The Tribunal considered the various matters raised by the applicant, having regard to the evidence of the state of the property and the time passed since the notice was issued.  It concluded that the issue of the notice was a valid and reasonable exercise of the local government's power and dismissed the application.,The Tribunal also considered and rejected the applicant's contention of illegal entry, having regard to the relevant legislation.  It did, however, extend the time for compliance with the notice, in light of the applicant's recent incarceration.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : SALIBA and TOWN OF BASSENDEAN [2014] WASAT 140 MEMBER : MS L WARD (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 21 OCTOBER 2014 FILE NO/S : DR 202 of 2014 BETWEEN : CARMEL CHARLES SALIBA

Applicant

AND

TOWN OF BASSENDEAN
Respondent

Catchwords:

Local government ­ Review of issue of tidy-up notice ­ Whether entry to land illegal

Legislation:

Interpretation Act 1984 (WA), s 76

Local Government Act 1995 (WA), s 3.25, s 3.28, s 3.31, s 3.32, Sch 3.1 Div 1 Pt 3, Div 3 Pt 3, cl 5A, cl 5A(2)

Result:

Decision under review varied by extending period for compliance with relevant notice until 21 days from date of order

Summary of Tribunal's decision:

The applicant sought review of a local government notice requiring the removal of numerous items from land which he owned and which was considered by the local government to be untidy.

The applicant had progressively removed various items before the application was determined.
In relation to the items which remained, he expressed a right to retain many, principally on the ground that they were required for the purpose of home renovations. He also claimed that the local government officers had been vindictive towards him and entered his property illegally.
The Tribunal considered the various matters raised by the applicant, having regard to the evidence of the state of the property and the time passed since the notice was issued. It concluded that the issue of the notice was a valid and reasonable exercise of the local government's power and dismissed the application.
The Tribunal also considered and rejected the applicant's contention of illegal entry, having regard to the relevant legislation. It did, however, extend the time for compliance with the notice, in light of the applicant's recent incarceration.

Category: B

Representation:

Counsel:

Applicant : Ms J Clarke (Acting as Agent)
Respondent : Ms M Murton

Solicitors:

Applicant : N/A
Respondent : Town of Bassendean

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1 On or about 20 May 2014, an officer of the Town of Bassendean (Bassendean) gave the applicant, Mr Carmel Charles Saliba (Mr Saliba), a notice under s 3.25 of the Local Government Act 1995 (WA) (LG Act) (notice). The notice required the removal of numerous items from land owned by Mr Saliba in Bassendean within 42 days. The land has a house and some outbuildings constructed on it, but is unoccupied. The reason that the notice was issued, as expressed in the notice, was that Bassendean considered the land to be untidy by reason of the presence of rubbish and disused material.

2 Mr Saliba has exercised his right to seek review by the Tribunal of the decision to give the notice. He sought further time than that allowed by the notice for the removal of some items, and argued that other items should not have been included in the notice. He submitted that Bassendean's officers entered his property illegally and that they bore a grudge against him.

3 Subsequent to the commencement of the review proceeding, Bassendean's rangers attending the land discovered some items in the notice to have been removed, and compiled a fresh list of remaining items. Bassendean continued to be of the view that the land remained in an untidy state and negatively impacted on the surrounding properties.

4 On 13 August 2014, which was the day fixed for the hearing of the matter, there was no appearance by Mr Saliba. The application for review was dismissed and the decision to issue the notice was affirmed.

5 On 25 August 2014, upon Mr Saliba's claim that he did not attend the hearing due to his imprisonment on an unrelated matter, the order of 13 August 2014 was vacated. Directions were made for the filing of further relevant material, with the matter to be determined on the documents filed by the parties.

6 Mr Saliba filed a general statement of his submissions, together with his individual responses to a schedule of the items remaining prepared by Bassendean's officers following a further inspection on 1 September 2014 (September schedule). Bassendean responded that the position remained that a substantial number of items remain on the land which require removal.

7 I will consider both the general and specific submissions raised by Mr Saliba with a view to determining whether or not the notice ought to remain on foot. To the extent that there are items in the notice which, as Mr Saliba asserts, have been subsequently removed, and which may constitute partial compliance with the notice, this does not affect the validity of the notice itself.

8 The review application is concerned primarily with whether, having regard to the relevant statutory regime, the issue of the notice was a valid and reasonable exercise of power. The object of the review is to arrive at the correct and preferable decision. The outcome may be to affirm the decision to give the notice, vary the decision, or set aside the decision and substitute another decision or send the matter back to the decision­maker for reconsideration.

9 Once I have dealt with the primary issue, I will then turn to the question raised by Mr Saliba concerning the legality of Bassendean's officers' entry onto his land.

Statutory framework

10 Section 3.25 of the LG Act provides that a local government may give a person who is the owner of land a notice in writing relating to that land requiring the person to do anything specified in the notice that, among other things, is prescribed in Sch 3.1 Div 1 of the LG Act.

11 Clause 5A of Sch 3.1 Div 1 of the LG Act states that a notice may require that overgrown vegetation, rubbish or disused material, as specified, is removed from land that the local government considers to be untidy. 'Disused material' is defined by cl 5A(2) to include disused motor vehicles, old motor vehicle bodies and old machinery.

12 Section 3.25 of the LG Act also provides for review of a decision to give a notice to this Tribunal, and that a person who fails to comply with a notice commits an offence.

The notice, removal of items from the land since issue of notice and current position

13 The notice, issued in May 2014, makes reference to a litany of articles and materials said to give rise to the untidiness of the land. They appear under the following locational headings:

• Left hand side of house;

• Left hand side between house and shed;

• Right hand side of house;

• Front yard verandah;

• Front yard;

• Rear of house;

• All of the land.

14 An item of particular concern, under the 'All of the land' heading, includes 'asbestos, loose and stacked'. A separate Asbestos Removal Notice was served on Mr Saliba on 20 May 2014, which is not the subject of this proceeding.

15 For practical purposes, the notice's continuing significance attaches only to those items remaining on the land referred to in the notice. There appear to have been two occasions on which the land has been cleared of many of the items listed in the notice.

16 Prior to the initial decision of the Tribunal to dismiss the application, Bassendean's senior ranger, Ms Sharna Murton, compiled a witness statement containing her record of items observed to have been both removed from the property and remaining on the property, according to Ms Murton's observations when she attended Mr Saliba's land on 22 July 2014. It is fair to describe the result in terms of a large number of items having been removed since the notice was issued, with a still larger number of items remaining. Going on the photographs supplied taken in May 2014 and again in July 2014, the appearance of the various areas of the land was enhanced since the issue of the notice, not least because of the cutting of the grass surrounding the house. The September schedule represents a further reduction of offending items, although some items formerly along the side of the house appear to have been relocated to the rear.

17 Although there is not a complete correlation between the September schedule and the schedule in the notice, this is understandable given the efforts made to remove items, the possible relocation of some items between the different sectors of the land, and the potential for different descriptions of the same items by reason of the passage of time and input into the two schedules by different officers. I am unconcerned by any apparent conflict between the two, given that the schedule to the notice contained, in relation to each of the different sectors, the miscellaneous description 'and any other objects unearthed, be it Metal, Glass, Concrete, Plastic, Brick, Wood or Asbestos'.

18 The September schedule is introduced with '[i]tems noted as remaining on the property at Site Inspection with Jenny Clarke 1 September 2014'. I have inferred that Mr Saliba accepts the September schedule as an accurate depiction of the position as at the date referred to, from the fact that Mr Saliba used it for the purpose of his item­by­item responses to which I have referred. In these circumstances, I have and do rely upon its accuracy as a record of the current condition of Mr Saliba's property.

19 The contents of the September schedule are reproduced below.

Items noted as remaining on the property at Site Inspection with Jenny Clarke 1 September 2014:

LEFT HAND SIDE OF HOUSE

Stacked Chipboard and Melamine boards

Tarpaulins

Loose bricks

Plastic sheeting

Carpet and underlay

Stacked wood

Shade cloth

Steel Frames

Paint tins

Toilet cistern lids

Tiles

Hessian bags full of broken melamine

Air conditioner units X 2

Buckets

Paint Brushes

Glass objects - broken pieces and jars

Bamboo Blinds

Paint trays

REAR OF PROPERTY

Washing Machines X 5

Laundry cabinet

Bottle containers

Car Batteries

Hessian bags full of broken melamine pieces

Metal objects

Paint trays

Portable cot

Clothing, curtains, sheets and rotting material

Wood pieces

Guttering

Chairs

Loose bricks

Broken furniture

Plastic furniture

Shopping trolley

Cat scratch post

General rubbish

Litter trays

Pots, pans and plates

Electrical goods

Cupboards

BBQs

Polystyrene boxes and pieces of polystyrene foam

Wicker baskets

Bas bottles

Scooters

Carpet

Glass

Wooden objects

Foam

Fridges

Tools-Electrical and hand tools

Metal objects

Paint tins

Doors

Cupboard doors

Lawn mowers

Tiles

Toilet cisterns and lids

Pram

Oven frames

Bike Frames

Wheel barrows

Car seats

Car Bumper

Microwaves

Metal frames

Tiles

Boxes

Wooden Frames

Tyres

Wood Stacks

Tarpaulins

Mattresses

Spa bath

44 gallon drums

Metal sheeting

Metal frames

Concrete slabs

Asbestos sheeting (substantial amount)

Bikes and bike frames

Ladders

Children's Toys

Electric blanket

Meter boxes

General junk items

Wooden pieces and boxes

Electrical goods

FRONT YARD

Trailer (unlicensed) full of sand

Couch

Wooden Items

General rubbish.

And any other objects unearthed, by it Metal, Glass, Concrete, Plastic, Brick, Wood or Asbestos.

Consideration of Mr Saliba's contentions regarding the notice

20 In his general submission dated 2 September 2014, Mr Saliba raised a number of matters having some relevance to the presence of, principally, the building materials on the land.

21 Mr Saliba stated that he built the home on the land for his parents, and it holds many memories for him. The house is 56 years old, and in need of renovation, which he commenced with the help of some friends. He kept the 'renovation materials' on the land.

22 After the attendance by Bassendean's rangers, Mr Saliba shifted a lot of the items before he became embroiled in a dispute regarding a limestone wall at another property, resulting in a fine, which was the precursor to his present incarceration.

23 Mr Saliba repeated his claim of vindictiveness, directed at one of Bassendean's rangers, saying that the ranger has 'got [it] in for me'. He also complained about the conduct of one of his neighbours who reported the state of his property to Bassendean.

24 Mr Saliba requested that the matter (a reference to the Tribunal proceeding) be delayed for two months so that 'everything can be sorted out'. He cited in particular a street rubbish collection due in the area in October 2014.

25 Mr Saliba's responses to the specific items referred to in September schedule indicate that some items have gone, some are to go, and, in relation to a large number of the remaining items, a right to retain them in their present location exists, either because they are earmarked for use in the proposed renovations or other purposes on the land, or for other reasons.

26 Given the statutory policy of enabling a local government authority to issue a notice for the removal of, relevantly, 'disused material' in respect of land considered by the authority to be untidy, I am not persuaded to set aside the notice to the extent that it requires the removal of building materials. Land owners are free to deposit building materials on land temporarily for conversion into a renovation project on that land. However, putting to one side the period of uncertain length prior to the issue of the notice when materials of that nature were on Mr Saliba's land, they have now been there for a full five months. In addition, Mr Saliba's current imprisonment, and the absence of any concrete proposal as to how the renovation materials are to be deployed within any short timeframe, does not instil confidence that the five month period will not, absent an operable notice under the LG Act, extend interminably into the future.

27 The position regarding other items supposedly to be used outside the house but on the land (the spa bath is an example, said to be for use as a fish pond), and household chattels (for example, pots and pans, wicker baskets and bottle containers said to be used for pickled olives) is much the same. These are not items the storage of which is permanently in the surrounds of a house, and a time limitation applies to them as it does to building materials, outside of which they are reasonably to be regarded as disused.

28 There is a number of items in respect of which Mr Saliba protests that there is nothing wrong with their presence on the land. Those items include:

• chairs;

• cat scratch post;

• litter trays;

• barbecues;

• gas bottles;

• scooters;

• refrigerators;

• lawnmowers;

• wheelbarrows;

• ladders; and

• a couch under the front verandah.

29 It is fair to say that these are the types of items one normally associates with, particularly, backyards of inhabited residential properties in Australia. But it is clear this property is not inhabited, a tenant having vacated some time ago and Mr Saliba commencing but not completing renovations. Their ongoing presence on the land in those circumstances is suggestive that they are disused and properly the subject of the notice.

30 As for the matters in respect of which Mr Saliba's response is either 'gone' or 'going', the notice can simply continue to operate according to its terms.

31 I note that Mr Saliba does not disagree that a substantial amount of asbestos sheeting remains in the rear of the property, but claims that the asbestos represents the remains of the fence along the right hand side of the land, which his neighbour left on the land after installing a Colorbond fence. For the purposes of this proceeding, the asbestos is best described as 'rubbish' of a particularly dangerous kind, and its presence on his land imposes on Mr Saliba an obligation to remove it, whether with the assistance and cooperation of his neighbour or otherwise.

32 For the reasons I have given, Mr Saliba has failed to persuade me that the issue of the notice was anything but a valid and reasonable exercise of Bassendean's power under s 3.25 of the LG Act.

33 Given Mr Saliba's present circumstances, which are likely to have contributed to a lack of further action by him with regard to the notice, I am prepared to vary the notice so as to afford him the opportunity of an additional 21 days in which to comply.

Legality of actions of officers in serving the notice

34 It is not part of the review function of the Tribunal to consider the legality of Bassendean's officers' conduct leading to the issue of the notice as a discrete exercise of the Tribunal's review powers. However, any illegality of entry may cast doubt upon the admissibility of the evidence to support the issue of the notice obtained upon such illegal entry to Mr Saliba's land.

35 Mr Saliba alleges that Bassendean's ranger and some other persons entered his property without any notice. Relying upon the timeline of events provided by Bassendean, I assume this allegation to relate to the occasion of Bassendean's officers' entry onto the land on 16 May 2014 to investigate complaints they had received regarding storage of items on the land.

36 Section 3.28 of the LG Act states that the powers of entry conferred by Subdivision 3, Div 3 of Pt 3 of the LG Act may be used for performing any function that a local government has under the LG Act if entry is required for the performance of the function.

37 Section 3.31 of the LG Act, which is within Subdivision 3, Div 3 of Pt 3, provides for entry by or on behalf of a local government onto any land where notice has been given under s 3.32 of the LG Act.

38 Section 3.32(1) of the LG Act states that a notice of an intended entry is to be given to the owner or occupier of land to be entered. The notice is to specify the purpose for which the entry is required, and continues to have effect for so long as that requirement continues: s 3.32(2). The notice must be given not less than 24 hours before the power of entry is exercised: s 3.32(3). Successive entries for the purpose specified in the notice are to be regarded as entries to which that notice relates: s 3.32(4).

39 According to Bassendean's timeline, on 14 May 2014, Bassendean gave Mr Saliba a notice of entry in compliance with these provisions. The notice 'was hand delivered to Mr Saliba's residence at 60 Luderman Road, Noranda'. As the photographic evidence provided in Bassendean's bundle of documents shows, the notice was placed in the letterbox of the house at the Noranda address, which is the address given by Mr Saliba in the application document. A copy of the notice was handed to Mr Saliba when officers entered the property.

40 The requirement for notice of an intended entry to be given not less than 24 hours before the power of entry is exercised will be found to have been complied with on the facts of this case only if the leaving of the notice of entry in the manner described was legally effective.

41 Section 3.32 of the LG Act requires the notice to be 'given' to the owner of the relevant land. The word 'given' is not defined in the LG Act. In those circumstances, s 76 of the Interpretation Act 1984 (WA) (Interpretation Act) comes into play.

42 Section 76 of the Interpretation Act states relevantly:

Where a written law authorises or requires a document to be served, whether the word 'serve' or any of the words 'give', 'deliver' or 'send' or any other similar word or expression is used, without directing it to be served in a particular manner, service of that document may be effected on the person to be served ­

…

(c) by leaving it for him at his usual or last known place of abode …; or

…

43 I am satisfied that leaving the notice of entry in the letterbox of the Noranda address constituted sufficient service of the notice in accordance with s 76 of the Interpretation Act. Whether or not the notice actually came to Mr Saliba's attention is irrelevant.

44 For the above reasons, I reject Mr Saliba's claim that the entry by Bassendean's officers onto his land on 16 May 2014 was illegal. That being so, the evidence obtained by Bassendean's officers at the property on that day, and on subsequent occasions of inspection by Bassendean's officers in order to establish the extent of compliance with the notice, to which I have had regard, is properly before me.

Order

45 For the above reasons, the Tribunal will issue an order in the following terms:

1. The decision of the respondent to give a notice under s 3.25 of the Local Government Act 1995 (WA) to the applicant on or about 20 May 2014 is varied by extending the period allowed to comply with the notice until 21 days from the date of this order.

I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS L WARD, MEMBER