SALIBA and TOWN OF BASSENDEAN
[2005] WASAT 192
•10 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: DEVELOPMENT & RESOURCES
ACT: TOWN PLANNING AND DEVELOPMENT ACT 1928 (WA)
CITATION: SALIBA and TOWN OF BASSENDEAN [2005] WASAT 192
MEMBER: MR P McNAB (MEMBER)
HEARD: 10 JUNE 2005
DELIVERED : Delivered Extemporaneously on 10 JUNE 2005 typed from tape and edited by Member
FILE NO/S: RD 383 of 2005
BETWEEN: CARMEL SALIBA
Applicant
AND
TOWN OF BASSENDEAN
Respondent
Catchwords:
Local Government - Notice to property owner to remove rubbish and disused material - Superfluous material contained in notice - Alleged "temporary" storage - Excuses offered by owner of property relating to the alleged actions of third parties - Alleged permission by Local Government authority - Decision to issue notice affirmed
Legislation:
Local Government Act 1995 (WA), s 3.25 and Sch 3.1
Result:
Application dismissed and decision under review affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr K Short
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The review dealt with the reasons for noncompliance by the applicant, Mr Saliba, with a local government notice requiring the applicant to tidy up some land that he owned. The Tribunal considered that the notice was valid notwithstanding that it referred to some additional (superfluous) material in the form of the notice. The Tribunal was satisfied that the notice was properly issued and served, and that both at the time of the issue of the notice and at the time of the hearing, the property was relevantly untidy.
The Tribunal considered a number of explanations and excuses offered by the applicant landowner but was not persuaded that any of these matters had been made out sufficiently enough to warrant not affirming the decision to issue the notice. The application was therefore dismissed. Oral reasons for decision, which appear below, were delivered shortly after the conclusion of the hearing.
Introduction
This is an application for a review of the decision by the respondent local government authority in respect of the issue of a notice to the applicant requiring him to do certain things under s 3.25 of the Local Government Act 1995 (WA) (the Act) at 37 Schofield Street, Eden (the subject property). Section 3.25 of the Act requires an owner of property, in effect, to comply with a notice given pursuant to that section. By reference to par 5A of Div 1 of Sch 3.1 of the Act, it can be seen that the obligation upon owners who receive such notices extends as follows:
"To ensure that overgrown vegetation, rubbish, or disused material, as specified, is removed from land that the local government considers to be untidy."
In par 5A, "disused material" is defined to include disused motor vehicles, old motor vehicle bodies and old machinery.
The Notice
In this matter, it is common ground that a notice purporting to be issued in compliance with those statutory provisions, and with reference to the statutory provisions and the subject property and other matters, was served and received by the applicant. The material part of the notice is the schedule to the notice, which contains the following heading:
"Rubbish and disused material."
The notice then specifies, in accordance with the Act, the following items:
"Stacked roof tiles, stacked bricks, car tyres, stacked timbers, wood pile, corrugated fencing, post and rail retaining wall system (not erected), concrete rubble, general household rubbish."
The final part of the schedule to the notice states:
"This notice is issued because the local government considers the land to be untidy and its appearance is inconsistent with the general appearance with the properties in the immediate locality."
To reiterate, the Act permits such a notice to be given to ensure that overgrown vegetation, rubbish, or disused material, as specified, is removed from land that the local government considers to be untidy.
To the extent that the notice refers to other matters, that is, its reference to the appearance inconsistent with the general appearance of properties in the immediate locality, which appears to be a reference to matters specified in par 5 of Sch 3.1, the Tribunal is of the view that such superfluous material may be disregarded and does not invalidate the notice, and the notice may be read comfortably in conformity with s 3.25 of the Act.
It is not in doubt that the notice was received by the applicant and that he understood the obligations imposed by its receipt, and that he is the owner of the subject property.
Applicant's grounds for review
The applicant's grounds for the review, as received by the Tribunal, that is, the applicant's application for review, are stated as follows:
"I want to keep the material on the premises to rebuild the garage to give more time to repair the house."
Respondent's evidence
The respondent supported its case (that is, the decision to issue the notice ought to be, in effect, confirmed) by the evidence of Mr Short (including certain photographs taken by Mr Short in December 2004 and in April and May of this year); the evidence of a senior officer of the respondent, Mr Goldsworthy; and certain historical photographs taken some 10 years ago and held in the records of the respondent. The tender of these photographs was not objected to. The witnesses had both attended the subject property on several occasions, including visiting it as recently as today.
At one point late in the proceedings, the applicant suggested that the photographic evidence was illegally obtained by trespass. The Tribunal ruled in the course of the hearing that there was nothing to suggest and the Tribunal so finds that the officers had entered the subject property, which was mostly unfenced, unlawfully at common law, and this is so even without having regard to their statutory authority which may have permitted them to enter the subject property.
In any event, the Tribunal finds that, even if the photographic evidence were to be totally excluded from this hearing, the officers' oral evidence and admissions of the applicant would combine to sufficiently demonstrate the factual substratum upon which the notices were issued.
It is unnecessary to set out the evidence referred to in precise detail, as much of it was not relevantly contradicted or challenged by the applicant, although he did challenge the categorisation of certain material as discarded, and suggested that temporary storage on one's land was permissible.
Suffice it to say, having listened to that evidence and having carefully studied the photographs which have been admitted into evidence accompanying that oral evidence, the Tribunal is satisfied without any doubt, that at the time the notice was issued, the subject property clearly was extremely untidy and was, in fact, littered with rubbish and other discarded material in each of the various categories specified in the notice to which the Tribunal has already referred.
Much of the material in the notice had been on the subject property for some time, and the subject property looked like it was in a state of disrepair and had been abandoned. The Tribunal specifically notices the graffiti and general damage. At the time of the issue of the notice, the subject property was appropriately described by the applicant himself as looking "like a war zone".
Applicant's reasons
The applicant offered the following reasons for setting aside the notice and affirming his application for review. His reasons may be summarised as follows:
•He was "authorised", to some extent, by Mr Goldsworthy in a visit by him to the subject property some years ago about similar problems to the current circumstances, after the applicant's garage and house had been damaged by fire. Alternatively, the applicant suggested that he had a right to temporary storage of building materials.
•He submitted that he could blame much of the rubbish and other materials on the actions of various neighbours, including various Homeswest tenants.
•He submitted that he had, over the years, various personal, financial, matrimonial and health problems, including the death of his first spouse.
•He submitted that he had significantly tidied up the premises recently and now had the premises tenanted, and wished to rebuild the house for his grandchildren.
•He submitted that some of his neighbours did not think that his property was an eyesore.
Tribunal's findings
The Tribunal turns to each of those arguments. First, dealing with Mr Goldsworthy's visit to the property some years ago and the applicant's alleged right to temporary storage of building materials: Mr Goldsworthy could not recall any such authority or permission, suggesting that he might have indicated, at best as a temporary measure some 10 years ago, that the stacking up of rebuilding materials might be in order. The Tribunal fully accepts the evidence of Mr Goldsworthy over the recollection of the applicant, who was uncertain as to the date of the visit.
And, in any event, the Tribunal finds that such permission, if any, was given many years ago and as such is irrelevant to the current notice, and does not affect its validity and is irrelevant to the exercise of any discretion (if any) that the Tribunal has in relation to the notice.
The Tribunal need not consider whether temporary storage of certain material is a relevant issue, as the evidence shows that such material has been on the subject property for many, many years. It could not be described as temporary, on any ordinary reading of that word. In any event, even temporary materials might well be the subject of a relevant notice. The Tribunal does not accept that the alleged permission given by Mr Goldsworthy, or the characterisation of the materials as temporary, in any way affects the validity of the notice or is relevant to the exercise of any discretion that the Tribunal might have to set aside the notice.
Secondly, the argument put forward by the applicant as to the action of neighbours, is dealt with by the Tribunal as follows.
There was no evidence produced to substantiate any of this, but Mr Short for the respondent conceded that the Council had at least heard of such matters from the applicant on previous occasions. The Tribunal's view is that such matters do not relevantly affect the applicant's duty to comply with a valid and clear notice, nor do they offer any relevant excuse or reason for the Tribunal to exercise any discretion, if it has any, in his favour.
The purpose of the legislation is tolerably clear: if you are the landowner, you must keep the premises relevantly tidy when a notice to that effect is given. The obligation is to comply with the notice or face prosecution or other proceedings. What third parties do, or did not do, or whether they may have been the cause or basis of the issuing of the notice, in administrative proceedings they cannot then go on to be an excuse to negate the issue of that notice.
The third matter raised by the applicant was his various personal, financial, matrimonial and health problems. Again, no evidence was produced to substantiate such matters, and only the briefest outline of such matters was given to the Tribunal. Taking them at their face value, difficult as that is, they do not, similarly, relevantly excuse compliance with a regulatory notice. One might have sympathy for the applicant, and they may be relevant factors in a criminal court, particularly as to any penalty, but they are largely irrelevant in an administrative tribunal where the decision is about compliance with a statutory administrative notice.
Next, the applicant has submitted that he had tidied up the premises and wished to rebuild the place for his grandchildren. This was an agreed fact as to recent events, although the Council witnesses still describe the premises as relevantly untidy, as there still remains on the subject property materials such as tiles, timber and fence posts that have been there for many years. Even if the applicant has recently tidied them up to some extent, it is not appropriate to set aside the continuing obligation on the applicant.
Finally, it was submitted by the applicant that some of his neighbours did not think his property was an eyesore. Without any notice to the respondent, a pro forma undated letter signed by six apparent neighbours was produced. The Tribunal received the letter, but given its lack of detail and the inability of the respondent to crossexamine any of the purported signatories, such a collection of letters must carry little weight, even if they were otherwise relevant to the proceedings. Even accepting them at their face value, difficult as that is in these circumstances, they do not carry anywhere near the weight that a regulatory notice issued by a local authority based upon firm evidence of the subject property being an eyesore (both then and now) does. Clearly, that position is supported by the evidence, which is the case here, as found by the Tribunal.
Thus, such a letter cannot be used to set aside or alter the obligation that the notice imposes upon the applicant.
Conclusions
In the Tribunal's view, the correct and preferable decision was for the notice to issue, and the Tribunal repeats that there was abundant evidence for its issue, and nothing has been produced in the evidence before the Tribunal today that would either permit or persuade the Tribunal to set aside the notice. The notice must be complied with or the applicant may face other consequences. The fact that the applicant has now appeared to have attempted to comply with the notice as recently as yesterday is to his credit, but it is not a ground for setting the obligation aside. The application must be dismissed.
Orders
The orders of the Tribunal are:
1. The application is dismissed.
2. The decision under review is affirmed.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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