Stock v Anning
[2006] WASC 275
STOCK -v- ANNING [2006] WASC 275
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 275 | |
| Case No: | SJA:1070/2005 | 2 NOVEMBER 2005 | |
| Coram: | JOHNSON J | 8/12/06 | |
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused Application dismissed | ||
| C | |||
| PDF Version |
| Parties: | MICHAEL STOCK PHIL ANNING |
Catchwords: | Prosecution under Local Government (Miscellaneous Provisions) Act 1960 Breach of requirement to obtain building licence Failure to comply with notice to remove building |
Legislation: | Building Regulations 1989 Criminal Code (WA) Criminal Procedure Act 2005 Local Government (Miscellaneous Provisions) Act 1960 (WA) Town Planning and Development Act 1928 |
Case References: | Abalos v Australian Postal Commission (1990) 171 CLR 167 Abram v Bank of New Zealand [1996] ATPR 41-507 Devries v Australian National Railways Commission (1993) 177 CLR 472 Fox v Percy (2003) 214 CLR 118 Minogue v HREOC (1999) FCA 85 Neil v Nott (1994) 121 ALR 148 R v Apostilides (1984) 154 CLR 563 Richardson v R (1974) 131 CLR 116 Rjaski v Scitec Corporation Ltd, unreported; NSW (CA); 16 June 1986 Hollingham v Head (1858) 27 LJCP 241 Hollington v F Hewthorn & Co [1943] KB 587 Mraz v The Queen (1955) 93 CLR 493 R v Mullen (1938) 59 CLR 124 Re Capobianco; Ex parte Castelli, unreported; Library No 980567; 25 September 1998 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
PHIL ANNING
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE V EDWARDS
File No : MI 1594 of 2005, MI 1595 of 2005
Catchwords:
Prosecution under Local Government (Miscellaneous Provisions) Act 1960 - Breach of requirement to obtain building licence - Failure to comply with notice to remove building
(Page 2)
Legislation:
Building Regulations 1989
Criminal Code (WA)
Criminal Procedure Act 2005
Local Government (Miscellaneous Provisions) Act 1960 (WA)
Town Planning and Development Act 1928
Result:
Leave to appeal refused
Application dismissed
Category: C
Representation:
Counsel:
Appellant : In person
Respondent : Mr S S Barbaro
Solicitors:
Appellant : In person
Respondent : Minter Ellison
Case(s) referred to in judgment(s):
Abalos v Australian Postal Commission (1990) 171 CLR 167
Abram v Bank of New Zealand [1996] ATPR 41-507
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Minogue v HREOC (1999) FCA 85
Neil v Nott (1994) 121 ALR 148
R v Apostilides (1984) 154 CLR 563
Richardson v The Queen (1974) 131 CLR 116
Rjaski v Scitec Corporation Ltd, unreported; NSW (CA); 16 June 1986
(Page 3)
Case(s) also cited:
Hollingham v Head (1858) 27 LJCP 241
Hollington v F Hewthorn & Co [1943] KB 587
Mraz v The Queen (1955) 93 CLR 493
R v Mullen (1938) 59 CLR 124
Re Capobianco; Ex parte Castelli, unreported; Library No 980567; 25 September 1998
(Page 4)
1 JOHNSON J: The appellant seeks leave to appeal against his conviction in the Midland Magistrates Court on 20 May 2005 on two charges arising from the building of a free-standing timber framed room referred to as a games room ("the games room") on the appellant's property at No 52 (Lot 182) Poincare Street, Bolgart ("Lot 182") which is within the Shire of Victoria Plains ("the Shire").
2 The first charge, which was brought on 25 September 2003 alleged that the appellant commenced and proceeded with a building, namely a free-standing timber framed room, without first submitting and obtaining approval for a building licence, contrary to s 374(1)(a) of the Local Government (Miscellaneous Provisions) Act 1960 ("the Act") and in contravention of s 670 of the Act. The second charge alleged that on 28 October 2004, being the owner of the building and having been served with a notice under s 401(1)(c) of the Act ("the Notice"), the appellant failed to comply with the requisitions in the Notice within 14 days of the dismissal of an appeal against the Notice. In that charge the complainant sought an order under s 401(7) of the Act that the appellant, within 21 days, remove the building in accordance with the Notice. The complainant further sought an order for the costs of the Shire in relation to the proceedings as provided for in s 401(7) of the Act.
3 Both charges were heard together. Having been denied Legal Aid funding, the appellant elected to represent himself. Both charges were found by the Magistrate to be proved beyond a reasonable doubt and the appellant was fined $750.00 plus costs of $3,830.20 and given 35 days to remove the building. It was therefore established that the appellant had no building licence as required and had failed to comply with the Notice requiring him to remove the games room.
4 It is against these convictions that the appellant seeks leave to appeal. At all stages, including the preparation of the application for leave to appeal and the hearing of the application, the appellant acted on his own behalf. The application has been drafted in such a way that the grounds of appeal appear marked as par 2 to par 5. I will retain that numbering so that the grounds of appeal match the paragraph numbers in the application. The grounds of appeal are as follows:
"2. The CEO Mr Phil Anning was not available to be crossexamined because he was not called as a witness by the Shire, I was unaware that it was my responsibility to summons the complaint as pointed out on page 121 of transcripts dated 20th May 2005.
(Page 5)
- 3. The President of the Shire of Victoria Plains, Mr Anspatch fail to bring his diary, which would proved that the CEO acknowledged that the three (3) applications for planning consent were in the possession of the CEO. And all that was required to do was to get the go ahead from Mr T Walker.
4. Mr Ray Galbraith was in partnership with myself to relocate a house to lot 183 George Street Bolgart. Mr Galbraith witnessed violence and misconduct by Mr T Walker.
Mr R Galbraith was not allowed to be called as a witness against Mr T Walker's demeanour.
5. Mr Geoff Erickson a councillor who has helped me was not allowed to give evidence on my behalf."
Summary of facts and issues
5 On the hearing of the appeal, the appellant was requested to give a brief summary or overview of the circumstances that led to the charges. It became apparent that he was unable to do that in a coherent fashion and without descending into accusations of general impropriety on the part of the Shire. Consequently, the content of the following summary of the relevant events culminating in the trial of the appellant on the two charges is predominantly based on uncontested facts and documentary evidence. Where any fact or matter to which I refer is in dispute, the source of the information and the nature of the dispute will be specifically noted.
6 The appellant owned two properties in Poincare Street, Bolgart; Lot 182 and Lot 194. The appellant was involved in the house relocation business and had worked for a time for a company which transported houses from one site to another. In November 2001 the appellant applied to the Shire to have two second-hand transportable houses moved to his properties; one for Lot 194 and one for Lot 182. Ultimately, the appellant did not proceed with moving the house to Lot 194.
7 In relation to placing the transportable house on Lot 182, the appellant at one point in his submissions stated to this Court that no planning consent was required and the only requirement was to apply for a building licence. That clearly was not the case because by letter dated 4 December 2001 the Shire advised the appellant that the Council at its November meeting resolved to support the issue of planning approval for
(Page 6)
- the relocation of a second-hand house to Bolgart but subject to final negotiations of conditions for planning approval (emphasis added). Reference is also made in the letter to two other buildings to be transported with the comment that "insufficient detail was available for them to be considered". Consequently, the letter advised the appellant that he was required to contact Mr Phil Anning, the then Chief Executive Officer of the Shire, to discuss the provision of appropriate detail to allow other buildings to be considered at the December meeting of Council. It is apparent from this letter, and therefore apparent to the appellant at the outset, that planning approval was required and that it could only be provided where the necessary material was available to the Shire. Further, in the absence of "appropriate detail" being provided, any approval provided would not extend to any other structures. To that extent, the content of the letter is inconsistent with the assertions made by the appellant that there was no need for planning approvals or for separate applications for different structures.
8 On 21 December 2001 Mr Anning again wrote to the appellant responding to issues raised in the appellant's letter of 19 December 2001. According to the 21 December letter, enquiries were to be referred to "J Randall" who was the building surveyor before Mr Trevor Walker took over that role. The letter contains the following items:
"2. It is noted that you indicate that the time frame for the house from 18 Carcoola Way, Nollamara is as soon as possible. It is assumed that you are at this stage still working on the necessary details to finalise Planning and Building Applications/Approvals for this building work. An indication as to when appropriate plans will be received would be appreciated.
3. Shed, Garden Shed, Carport and Granny Flat will require appropriate Building Approvals. It is noted that you still have not made final decisions in respect to them.
…
6. We have received confirmation that you have made the necessary arrangements with the Builder's Registration Board to allow the issue of a Building Licence for the House from Nollamara once appropriate plans/sketches have been lodged and approved."
(Page 7)
9 As counsel for the respondent submitted, the content of this letter made it clear that, both planning and building approvals were required for the relocation of a building, that appropriate plans/sketches were necessary before a building licence would issue, and that other buildings such as sheds, carports and granny flats would at least require building approval.
10 It is important to note from the outset that this second-hand house is not the structure the subject of the charges. To distinguish between the two structures I will refer to the second-hand house as the dwelling house and the structure relevant to the charges as the games room. Reference is made to the Council approvals for the dwelling house because the appellant's defence at trial was that the approvals in place for the dwelling house also applied to the games room.
11 On 15 January 2002 the Shire issued a Notice of Approval of an application dated 20 November 2001 ("the Planning Approval"). The Planning Approval granted conditional planning consent in relation to the application dated 20 November 2001 and the plans finalised on 11 January 2002. At trial there was a dispute concerning whether the documents filed by the appellant could properly be described as plans or were mere sketches. Because the term "plans" is used in various documents I propose to use that term for consistency and convenience. In doing so I make no determination of the most appropriate description to be given to the documents. It was also alleged by Mr Walker in his evidence, based on his review of the Shire's file, that the reason the application with respect to the dwelling house was not approved until January 2002 was because Mr John Randall had been waiting for details of the structure to be placed on Lot 182.
12 The Planning Approval was granted pursuant to the Shire's Town Planning Scheme No 4 ("TPS 4"). The Planning Approval was valid for three months from the date of the Notice and therefore expired on 15 April 2002. The following conditions were placed on the Planning Approval:
"1/- the works involved in the structural; completion of the house being done by 15/3/2002.
2/- the exterior of the house being repainted, except where the cladding is not of the type usually painted, by 15/4/2002.
(Page 8)
- 3/- the yard around the house being fenced in suitable solid fencing material to effectively screen the storages in the rear yard from the public and so that no deleterious effect occurs as a result of the storage of such material on the neighbourhood, by 15/4/2002."
- The Planning Approval was signed by Mr Randall on behalf of the Chief Executive Officer.
13 The appellant was also granted a Special Licence under s 399 of the Act which allows the Shire by a written licence to permit the erection of a building having external walls wholly or in part made of wood or another flammable substance. The Special Licence therefore operates as a type of building licence. Section 399(4)(a) also authorises the local government to grant permission to erect such a building "under such restrictions or for such time as the local government specifies". In view of the defence raised by the appellant, it is significant to note that the terms of s 399 are such that a licence granted under that section operates only to authorise the specific building and does not authorise construction of any other building on the land unless it is included in the plans and specifications. In particular, this type of licence operates only with respect to structures made of flammable substances which are otherwise prohibited from use in construction. The Special Licence was issued by the Shire on 15 January 2002 and granted conditional permission to erect and maintain until 15 April 2002 on Lot 182 a building "in accordance with the plans and specifications which have been lodged with the Building Surveyor". The terms of the Special Licence, therefore, make it quite clear that the Licence authorises the erection and maintenance of the building or buildings identified in the plans and specifications.
14 As I have noted, the Special Licence relates only to a specific building or buildings and there is nothing in its terms which indicates that it authorises the erection of any building on Lot 182 other than the one specifically identified in the plans. Indeed, were it to do so the Special Licence would be in excess of the power in s 399 of the Act. Although, if, as the appellant alleged, he had been informed that the licence applied to Lot 182 then a defence under s 24 of the Criminal Code (WA) ("the Code") could be raised in relation to a charge relating to the absence of appropriate approvals.
15 The paragraphs which appear in the Special Licence under the heading "Conditions", but which strictly speaking they are not, are in the following terms:
(Page 9)
- "1. The council may in its discretion on or after the 15th day of April next, and on or after the 15th day in each succeeding year, grant a licence, to be called a Special Renewal Licence, to maintain the above-described building for a further twelve months upon payment by the above-named of the appropriate fee in that behalf contained within Part 7 of the Local Government Building Regulations 1989.
2. The Council may at any time revoke this licence or any special renewal licence granted in respect to the above-described building, and direct the removal of such building, and in default of such removal may proceed to enforce the provision of any law made under the Local Government (miscellaneous provisions) [sic] Act 1960, or under any Act, in the same manner as if this licence had not been granted.
3. This Special Licence is issued on the understanding that approval will be upgraded to a Building Licence if and once the Planning Conditions issued in respect of the building have been complied with."
- The Special Licence was signed by Mr Randall in his role as Building Surveyor. It is apparent from par 3 of the Special Licence that it would not be upgraded to a building licence until the conditions placed in the Planning Approval were met.
16 The plans and specifications lodged with the application consist of a hand-drawn plan of a two bedroom dwelling house on the property. The plan does not include a free-standing structure on Lot 182 or any structure other than the two bedroom dwelling. However, the hand-drawn plan does include a handwritten notation: "Shed to Rear".
17 In his submission to this Court the appellant stated that, having paid the fee, the Council gave him "the go-ahead" and he moved the dwelling house. The evidence of Mr Walker at trial, based on the Shire's records, was that the dwelling house was ultimately erected on Lot 182 in January 2002. The appellant alleged that he had to put the house there first, but once the house was there, all he had to do was put in another block plan for a shed. He said that he was told that the original licence covered all outbuildings on the property. He also maintained that he had been told previously by Mr Randall that he could go ahead with the shed. He resubmitted the block plan and nothing was said. In my view, insofar as a
(Page 10)
- shed requires any form of approval for construction, it would not be covered by the Special Notice issued to the appellant on 15 January 2002, despite the reference to the shed in the writing on the plan.
18 According to the appellant, having put the shed up, the new building surveyor, Mr Walker, commenced employment and disputes developed about the conditions on the Planning Approval. It is at this point that the appellant decided to relocate the games room which is the building to which the charges relate.
19 In a letter to the Shire dated 18 November 2002, the appellant indicated his wish to apply "to have my games room relocated to the rear of my house at Lot 182". The only information with regard to the building itself was that it was 6 m x 4.2 m, had custom orb cladding with 4 inch walls, had aluminium windows, two external doors and was RSJ skid mounted. Although Mr Walker in his evidence at trial described this as an application for planning approval, the appellant did not indicate the particular type of approval he was seeking. It is clear, however, that as at 18 November 2002, the appellant was aware that some form of approval was required in order to erect a games room on Lot 182.
20 In his evidence at trial Mr Walker correctly stated that under s 374 of the Act it is incumbent on an appellant for a building licence to supply two copies of plans and specifications together with a site plan and an estimate of costs. The drawings are required to be drawn to scale, include a floor plan, at least two elevations and two sections and any other information the building surveyor requires. None of that information accompanied the appellant's letter seeking approval. Section 374(1b) of the Act also authorises the local government to delegate to its building surveyor the authority to approve or refuse plans and specifications submitted under s 374. Section 374(1b) further provides that the building surveyor shall not refuse to approve that plan or those specifications without first obtaining the consent of the local government, provided the plans and specifications submitted conform to all relevant local laws in force in respect to building matters and the local government's predetermined policy in respect of building matters. Therefore, if, as was alleged by Mr Walker in his evidence, the plans and specifications provided to him by the appellant did not meet the relevant legal and policy requirements, he was under no obligation to put the matter before Council.
21 On 31 January 2003 Mr Anning wrote to the appellant with respect to the Planning Approval and the Special Licence and advised that a recent inspection revealed that none of the conditions placed on the
(Page 11)
- planning approval for the dwelling house had been met. The appellant was advised that if the conditions were not satisfied by 30 April 2003 consideration would be given to revoking the Special Licence. The final paragraph was in these terms:
"With respect to your application to relocate a secondhand corrugated iron games room I would advise that approvals to relocate/erect further buildings on Lot 182 Poincare Street will not be considered until conditions pursuant to the planning consent and special licence have been satisfied."
That letter was drafted by Mr Walker and signed by Mr Anning.
The final paragraph underlined the need for further approvals if the games room were to be erected on the site. The letter also made it clear that any application with respect to the games room would not even be considered until 30 April 2003 or until the conditions of planning consent for the dwelling house were fulfilled. Mr Walker confirmed in his evidence that the appellant did make another application for planning approval on 20 March 2003 which would appear to result from Mr Anning's letter.
22 At trial Mr Walker was questioned by the appellant about a meeting between him and the appellant on 20 March 2003 which was followed by a meeting between the appellant, Mr Walker, the President and the Chief Executive Officer. Mr Walker did not dispute that such a meeting may have occurred but he had no recollection of it. It was put to Mr Walker that at that meeting he was told that he did not need a building licence for the games room project because the games room was covered by the Special Licence. Mr Walker described that allegation as absolutely incorrect and nonsense. In his evidence the appellant gave a slightly different version of the event alleging that the meeting with the President occurred first during which he was advised to go and see Mr Walker but he decided not to.
23 On 21 March 2003 Mr Anning again wrote to the appellant on behalf of the Shire returning the plans for the games room which it would appear the appellant had forwarded to the Shire without completing any type of applications form. The letter states:
"In order for Council to consider your application to locate a skid mounted games room at the rear of the partly completed dwelling on Lot 182 Poincare Street Bolgart you will need to complete the enclosed Application for Planning Approval Form."
(Page 12)
24 The content of that letter is, in my view, inconsistent with the assertion that the appellant had been advised at a meeting on the previous day, at which Mr Anning is alleged to have been in attendance, that the Special Licence authorised the erection of the games room.
25 The letter also made express reference to, and enclosed a copy of, an extract said to be from the Shire of Victoria Plains District Town Planning Scheme No 1 ("TPS 1") which was stated to contain the information required for the application to be considered by Council. The document is headed "4.2 APPLICATION FOR PLANNING CONSENT". Other than the reference in the covering letter the document bears no indication of its source. I will in due course address the specific issue raised by the appellant with respect to this document, but for the moment it is necessary only to summarise the stated requirements. Clause 4.2.1 states that every application for planning consent shall be made in the form prescribed in Sch 3 to the scheme and shall be accompanied by such plans and other information as is required by the scheme. Clause 4.2.2 states that, unless Council waives any particular requirement, every application for planning consent shall be accompanied by a plan or plans to scale showing, where relevant, street names, lot numbers, north points and dimensions of the site; the location and proposed use of the site including any existing buildings to be retained and proposed buildings to be erected on site; access and landscaping, plans, elevations and sections of any building proposed to be erected; and any other information that the Shire may reasonably require to enable to application to be determined.
26 It is clear from the Shire's records and from the evidence of Mr Walker that the Shire did not waive these planning requirements and nor would one expect them to in the circumstances that had arisen where the Shire considered the appellant had not complied with the conditions of the Planning Approval granted to him.
27 The appellant stated that, following the letter from the Shire, presumably the letter of 31 January 2003 or of 21 March 2003, he put in three or four applications for planning consent for the games room. Having alleged at trial that no further approvals were required for the games room because the appellant already had a licence on the property because of extensions to the Special Licence, the appellant provided no explanation for making these applications. I have considered the possibility that the appellant meant that no building approvals were required. However, the appellant said that the application he made was for "the consent and the licence and everything".
(Page 13)
28 Mr Walker said that in late March, early April, he advised the appellant on what had to be done to finalise planning consent. As a result, on 8 May 2003, the appellant resubmitted his hand-drawn plans with another application for planning consent. However, as I have noted, Mr Walker disputed that the term "plans" was an appropriate description for the hand-drawn sketches which were submitted in support of the application for planning approval. He noted that the sketches lacked the information required under reg 11 of the Building Regulations 1989 for them to be assessed for the issue of a building licence, although the appellant never made an application for a building licence in any event and no licence ever issued. In cross-examination, the appellant asked Mr Walker why he did not advise him that the plans were not up to standard. Mr Walker pointed out that the letter of 31 January 2003 made it clear that the Council would not consider any application until the conditions imposed on the approvals for the dwelling house were complied with. Mr Walker also noted that every time the appellant submitted a hand-drawn sketch the Shire wrote to him and advised what the requirements were and how he could bring the documentation to an acceptable level. However, the appellant never responded and continued to put the same sketches in to the Shire.
29 The appellant also alleged that the description of the structure as a games room was at the suggestion of Mr Walker who advised him that the only way to obtain approval was to call the building a games room. The appellant stated that he wanted the structure for a building hut, which was usually considered to be a temporary structure, but he was advised to describe it as a games room so that it would be a permanent structure. This proposition was disputed by Mr Walker who correctly noted that the original application for planning consent made by the appellant referred to the structure as a games room.
30 Returning to the state of the dwelling house approvals, the Shire's letter of 21 March 2003 makes it clear that the dwelling house was only partly completed at that stage. According to the appellant, he was unable to comply with the date in the Special Licence and he applied for an extension. He maintained that this would have been done by letter. The appellant was unable to produce any document in support of the request for, or the grant of, any extension of the Special Licence. The appellant stated that he was advised by Mr Anning that the Special Licence would be extended. The appellant advised the Court that he believed that he had an extension for 12 months because of the terms of condition 1 of the Special Licence referred to above. That would extend the operation of the
(Page 14)
- Special Licence until 12 January 2003. However, it would appear that the appellant was in fact submitting that there was more than one extension.
31 The document to which the appellant referred the Court in support of the second extension was a letter from Mr Anning dated 26 May 2003 which states that, with respect to the extension of the building permit, "we will consider such a request at the council meeting of the 27th May 2003". Mr Anning then adds: "If granted you will be expected to make every effort to comply with the requirements … ". It is apparent that the letter does not establish that an extension had been granted, merely that one would be considered. The reliance by the appellant on this letter as proof of the extension of the Special Licence is an example of the many occasions on which the appellant referred the Court to documents said to establish a particular assertion, where the contents of the document, on any reasonable interpretation, provided no such support. In some instances the document actually established the contrary position.
32 The appellant referred to another document in support of his proposition that approval was in place for the games room. The second document was another letter from Mr Anning which was dated 9 June 2003. The letter is stated to relate to the completion of the dwelling on Lot 182 and confirms previous correspondence advising that the planning consent had been extended until 30 April 2003 in order to comply with the conditions. The letter then refers to an inspection by Mr Walker which revealed that a number of matters needed to be completed to satisfy the planning consent. Those matters are identified in the letter. The letter advised the appellant that the Council had resolved he be granted until 31 August 2003 to complete the matters listed and any failure to complete those matters would result in the Special Licence being revoked.
33 The appellant's interpretation of this letter was that his licence had been extended until 31 August 2003. Mr Walker maintained that it did not mean that at all. He stated that the letter meant that Council was giving the appellant grace to complete the work although the building licence had expired. The purpose of that was that the Council did not wish to invoke the condition which says that if the conditions were not complied with the building was to be taken away.
34 Irrespective of the interpretation of the status of either the Planning Approval or the Special Licence, the final paragraph of the letter which outlines the Council's resolution makes it plain that, unless the appellant completed the works listed in the letter by 31 August 2003, the licence would be revoked. On that basis, if, as the Shire alleged, the dwelling
(Page 15)
- house was not completed by 31 August 2003, the appellant could not be certain that any licence was in effect after that date without making appropriate inquiry of the Shire.
35 By letter dated 6 November 2003 Mr Anning wrote to the appellant on behalf of the Shire concerning removal of what is described as the "unauthorised building" and setting out in chronological form a brief summary of some of the Shire's dealings with the appellant with respect to the buildings on Lot 182. The letter states that the Shire has no record of a formal Planning Consent Application being received from the appellant with respect to the games room and pointed out that "a letter of request is not sufficient to be granted planning consent". The letter also noted the occasions on which the Shire sent the appellant an Application for Planning Consent for completion and return. Mr Anning makes reference to the fact that a recent inspection of Lot 182 revealed that the building conditions placed on the dwelling house approval had not been met. This was consistent with the evidence of Mr Walker at trial which was that, even at the time of trial, the conditions of the approval for the dwelling house had not been met.
36 It remains unclear whether the "applications" sent to the Shire were applications in the appropriate form; that is, on the Shire's application for planning approval forms and containing all relevant and necessary material. It is therefore also unclear whether the "applications" for planning approval were not considered because of non-conformity with the requirements or because of the appellant's nonconformity with the conditions of the Planning Approval in relation to the dwelling house. For reasons to which I will shortly refer, it matters not which of these explanations is correct.
37 Much of the foregoing material was the subject of evidence at the trial of the charges and the various letters and other documents were tendered into evidence. The prosecution relied on the evidence of Mr Walker to establish that the appellant did not lodge an application for building approval as alleged in the first charge. Mr Walker stated that he knew that was the case because he was the person who handled the building applications and it was his responsibility to issue building licences. Mr Walker had extensive experience in local government. His involvement with the appellant and Lot 182 commenced on his employment with the Shire in October 2002. Mr Walker's familiarity with the appellant's dealings with the Shire prior to that time came from reviewing the file when he assumed the role of building surveyor from Mr Randall.
(Page 16)
38 Mr Walker made it clear in his evidence that the Planning Approval and the Special Licence related only to the dwelling house and that those approvals did not extend to the placement or construction of any other building on Lot 182. Mr Walker also emphasised that there is no games room depicted on the plan which was submitted for the purpose of obtaining the Planning Approval and the Special Licence. As the approvals expressly relate in their terms to the plans submitted, they could not, therefore, extend to the erection of the games room. Mr Walker denied providing the appellant with any verbal extension to either the Planning Approval or the Special Licence to allow for the erection of the games room.
39 On 25 September 2003 Mr Walker attended the appellant's premises and noted that the games room had been relocated to Lot 182. According to his evidence, which was accepted by the Magistrate, he spoke to the appellant and said to him "You know you haven't got approval for this". Mr Walker alleged that the appellant admitted that he did not have approval but said that he had done it anyway. Mr Walker then inspected the games room, took some photos and prepared a report. At trial, a neighbour, Annett Dorothy Lee, gave evidence of a conversation with the appellant in which he said he did not know whether the games room was allowed to be there or not but he thought it would be okay now that it was there. The evidence of both Mr Walker and Ms Lee was accepted by the Magistrate.
40 The report prepared by Mr Walker was provided to Council, the members of which unanimously passed the following resolution on 21 October 2003:
" … that Mr M Stock of Lot 182 Poincare St Bolgart be directed to remove the unauthorised second hand skid mounted, corrugated iron clad structure at the rear of his house within fourteen (14) days of notification, failure to comply will result in appropriate legal action being taken against him."
41 It is clear from the Minutes of the Council Meeting held on 21 October 2003 that Mr Walker's recommendation was that Council adopt one of two options: the first was to prosecute the appellant and request the Court to order removal of the building and the second was to grant approval for the relocation of the building on strict conditions to make the building aesthetically pleasing to the surrounding area. I note in passing that the inclusion of the second option, despite the appellant's repeated failure to comply with the conditions on the Planning Approval,
(Page 17)
- is somewhat inconsistent with the appellant's allegations of victimisation by the Shire and repeated misconduct by Mr Walker.
42 On 22 October 2003 Mr Anning wrote to the appellant advising him of Council's resolution and further advising him that failure to remove the unauthorised building within 14 days would result in legal action being taken without further notice. Mr Walker stated that he personally hand delivered the letter to the appellant on 22 October 2003. That fact is also endorsed on the Shire's copy of the letter. In his evidence, Mr Walker stated that the appellant did not comply with the direction to remove the games room. The appellant was then personally served by Mr Walker with the Notice under s 401 of the Act dated 1 December 2003 to remove the building within 35 days. The Notice was served together with a covering letter from the Shire's solicitors.
43 The appellant then appealed to the Minister for Housing and Works. On 13 October 2004 the then Minister wrote to the appellant advising him that his appeal against the requirements of the notice was dismissed. The Minister wrote:
"The Department's report on your appeal details your views that you considered that the Chief Executive Officer had authorised the building work. However, the report also states that the building does not comply with the requirements of the Building Code of Australia and required planning approval by the Shire. Although you were given the opportunity to resolve these matters, to date you have not provided confirmation that the building complies with the Building Code of Australia and obtained planning approval."
- I note this paragraph because it identifies yet another occasion on which the appellant has made assertions that approvals were in place but has been unable to substantiate them.
44 On 10 November 2004 Casey Dianne Westlake, a customer services officer at the Shire, was asked to attend Lot 182, inspect the property to see if the building was still there and, if so, take photographs. Ms Westlake gave evidence at trial and produced the photographs of the games room she took on that day.
45 In his evidence Mr Walker also stated that on the day prior to the hearing, 19 May 2005, he drove past Lot 182 and noted that the games room was still there. The failure to comply with the notice to remove the
(Page 18)
- games room was the subject of the second charge before the Magistrates Court.
Approvals required for the relocation of the games room
46 It can be seen from the foregoing summary that the resolution of this application depends to a significant extent on a proper understanding of the different types of approval required for the construction of a building. It is, in my view, the appellant's inability or unwillingness to accept the correct position on this issue that has led the appellant to pursue his application for leave to appeal in the way he has.
47 In Western Australia, the erection of a building requires two separate types of local government approval: planning approval and building approval. The requirement for planning consent with respect to the use and development of land is a requirement of a Shire's town planning scheme which is made pursuant to the Town Planning and Development Act 1928 ("the TPAD Act") and has statutory effect. Building approval is granted in the form of a building licence which is required by s 374(1) of the Act and reg 13(1) of the Building Regulations 1989. In view of the appellant's allegation that he was told he did not require a further building approval for the games room because it was appurtenant to the dwelling house, it is necessary to set out the types of structures or building works that require a building licence under s 374(1). Sub-section (1) provides that, until the prescribed form, a copy of the specifications and a plan clearly showing the proposed structure is submitted to the local government and the local government has granted approval by issuing a building licence, "[n]o person shall - (a) lay out for building, or commence or proceed with a building on, land in a district; or (b) in respect of the structure of a building already erected on land in a district, amend, alter, extend, or enlarge, or commence or proceed with the amendment, alteration, extension or enlargement of the structure of the building". It can be seen that the provision is extremely wide in its terms and even applies to changes to a structure already erected on the land, such as the dwelling house. Even if a structure could be said to be appurtenant to another, a separate building licence would be required.
48 As counsel for the respondent submitted, the requirements for planning approval and for building approval are separate and independent statutory regimes, both of which must be complied with in order to lawfully erect a building on land. Therefore, even if the appellant had been granted planning approval with respect to the games room, he was still under a statutory obligation to obtain a building licence before
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- relocating the games room to Lot 182. Although the two forms of approval are separate and independent obligations, the more usual practice in local government is for planning approval to be first obtained before a building licence issues. If planning approval is refused then the matter goes no further as there is no point in granting a building licence only as no construction can take place without both approvals being in place.
49 It would appear from the evidence at trial that the practice of considering planning approval first was adopted at the Shire. According to Mr Walker, a building licence could not issue until the project had planning approval. However, in any event, the plans submitted in support of the planning approval for the games room did not comply with the requirements for the issue of a building licence nor had any building licence application been filed.
50 Mr Walker explained:
" … in order for a planning consent application to go before the council it has to be accompanied by the correct form and the correct information. That was never submitted so it never ever got to the council, therefore I'm not able to issue a building licence, although we never ever received a building licence application."
51 In this case, the appellant was charged under s 374(1)(a) of the Act with commencing and proceeding with a building without first obtaining approval by the issue of a building licence. Put simply, he was charged with failing to obtain a building licence before erecting the games room (emphasis added). It is therefore the case that the approval or refusal of planning consent is completely irrelevant to the charge before the Court. Even if the appellant had obtained planning approval, the charge could still be made out if the prosecution could establish that no building licence was granted.
52 The remaining charge is brought under s 401 of the Act which empowers a local government to issue a notice with respect to the construction of a building, which has been carried out without permission, requiring the building to be removed. Sub-section (7) empowers the local government to apply to the Magistrates Court for an order requiring the builder or owner to remove the building if the notice has not been complied with within 35 days. Sub-section (8) authorises the local government to enter on to the land and remove the building if there has been no compliance with the Court order. Section 401 is contained in
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- Pt XV of the Act which specifically deals with building matters. It is apparent, therefore, that the permission referred to in s 401 is the building approval or building licence referred to in s 374 of the Act. Consequently, the issue of planning approval is also irrelevant to this charge.
53 I am satisfied that the only "approval" relevant to the charges before the Court was building approval under s 374 of the Act.
Judicial duty to assist unrepresented accused
54 The appellant was unrepresented at trial. Two of the grounds of appeal raise the issue of the extent to which judicial assistance should be given to an unrepresented accused. The principles which apply to this issue are well established. The Court has an obligation to diminish, as far as is appropriate, the disadvantage faced by an unrepresented person because of their lack of legal skill: Rjaski v Scitec Corporation Ltd, unreported; NSW (CA); 16 June 1986 (at [14]) per Samuels JA; Minogue v HREOC (1999) FCA 85 (at [27]). It is also the case that the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a Judge hearing civil proceedings: Minogue v HREOC (at [27]). However, the following observation of Samuels JA in Rjaski v Scitec Corporation Ltd (at [14]) identifies the limits of the principle:
"An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status would be quite unfair to the represented opponent."
55 In Abram v Bank of New Zealand [1996] ATPR 41-507, the Full Federal Court made this comment (at 42,347): "What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case". In Neil v Nott (1994) 121 ALR 148, the High Court observed (at 150): "frequent consequences of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy".
56 It is apparent from the trial transcript that, despite having considerable difficulty confining the appellant to issues relevant to the charges, the Magistrate took the time to explain matters to the appellant
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- and gave him considerable leeway because he was unrepresented. The appellant was assisted in identifying his defence and in formulating appropriate questions for witnesses. At times, the Magistrate asked questions on his behalf in order to ensure that the appropriate information was before the Court. However, it must be said that, at least on one occasion, this was done to prevent the appellant from asking entirely inappropriate questions. Nevertheless, it did assist the appellant in adducing relevant evidence.
57 Unfortunately, it is also apparent that the appellant was in no way inhibited from continuing to assert matters which he had been told were irrelevant or even plainly wrong. I have considered whether the appellant was unable to understand the directions given to him but have concluded that the appellant simply declined to accept that he was not entitled to raise any matter concerning the conduct of the Shire and its representatives at any stage and continued to do so despite the intervention of the Magistrate.
58 Having considered the transcript of the trial I am satisfied that the appellant was given all appropriate assistance by the Court to defend himself against the charges.
Magistrate's reasons for decision
59 As I have indicated, it was not always possible to understand the assertions the appellant was making in support of his application for leave to appeal. The grounds of appeal were given relatively minor attention with most of the appellant's focus being on many and varied complaints of misconduct on the part of Shire staff and other allegations said to establish that the charges against the appellant should not have been brought. Significantly, many of the allegations made by the appellant related to the issue of planning approval which, as I have indicated, was entirely irrelevant to the issues before the Court. In his submissions before this Court the appellant had great difficulty in identifying and supporting by reference to the transcript or to documents, either produced at trial or in his possession or the possession of others, the issues on which he relied in his defence or the criticisms he levelled at the Magistrate. The content of the affidavit in support of the application for leave to appeal provides little assistance as the contents are, in my view, vexatious and scandalous in the legal sense. I will return to the contents of the affidavit at a later point.
60 Although the grounds of appeal relate solely to rulings made by the Magistrate during the course of the trial, because the appellant is unrepresented I have considered whether the Magistrate fell into error in
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- any way that an unrepresented appellant may be unable to articulate or identify. I have done this out of an abundance of caution, mostly because of the numerous matters raised by the appellant in his submissions on appeal and because of their largely incomprehensible nature. In particular, I have taken this approach because of the broad and very serious allegations made in relation to Mr Walker, the Shire and the trial itself. I do not suggest that it is necessary to adopt this approach in relation to every unrepresented appellant. Indeed, I believe it should be the exception rather than the rule.
61 I have also considered the reasons for decision in full in order to determine whether the absence of any of the potential witnesses identified in the grounds of appeal could have had any effect on the decision of the Magistrate.
62 In those reasons the Magistrate accurately identified the elements of each offence. In relation to the first offence she observed that each element had either been established by the evidence or was not denied by the appellant and, prima facie, the evidence was sufficient for her to be satisfied of the offence beyond a reasonable doubt. The Magistrate mentioned a defence under s 24 of the Code but, as it was raised in relation to both offences, she chose to deal with them together.
63 In relation to the second offence the Magistrate noted that it must be proved beyond a reasonable doubt that, in the terms of the charge, the appellant did not submit in the prescribed form and on payment of the prescribed fee, a copy of the specifications of, and a plan showing clearly, the proposed building and the area of land to be occupied by the building, and the position of the privies and drains (if any). It was also noted that the prosecution must prove that the appellant commenced and proceeded with the games room without obtaining approval in the form of a building licence.
64 Section 374 of the Act appears in Div 2 which is headed "Submission of plans, installation of electricity for lighting, depositing of materials, protective hoarding". Although s 374 is expressed in prohibitive form and prescribes a penalty for breaching the section, its purpose is also to identify the statutory requirements before the activities identified in s (1)(a) and s (1)(b) can lawfully be carried out. As the requirement to submit specifications and plans is a prerequisite for building approval it is expressly referred to in s 374(1) and presumably this is the reason it was included in the wording of the charge. However, where it is established that approval in the form of a building licence has
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- not been granted then it is unnecessary to determine the issue of whether the specifications and plans were in the appropriate form or were even submitted. Even if they were, if no building licence issues, then there has been no approval and hence a breach of s 374(1)(a) of the Act.
65 Nevertheless, the Magistrate addressed both issues, no doubt out of an abundance of caution. She stated that she accepted the evidence of Mr Walker that no specifications were lodged. With respect to what Mr Walker called a sketch of the building, although referred to by the appellant as a plan of the building, the Magistrate again accepted Mr Walker's evidence that the sketch or plan did not comply with reg 11 of the Building Regulations 1989. That conclusion was drawn after a consideration of the terms of reg 11. Finally, the Magistrate accepted the evidence of Mr Walker that a separate building licence was not issued in respect of the games room.
66 The Magistrate then addressed the key issue in relation to both offences. Whether, as alleged by the appellant, he had approval to relocate the games room to Lot 182. The appellant's evidence in this regard was given careful consideration. The appellant maintained that, although he made three applications to the Council with regard to the games room, he did not require a separate building licence because of the existence of the Special Licence. In particular, he said that Mr Walker told him that the games room was appurtenant to the house and no further licence was necessary.
67 The appellant's version of events was considered by the Magistrate as a defence under s 24 of the Code of mistake of fact. With respect to the first charge, any issue affecting the validity of the notice, including the fact that the "permission" referred to in s 401(1)(c) had in fact been given, if not disproved by the prosecution, would mean that the offence was not proved. With respect to the second charge, if the allegation that approval had been granted cannot be negatived, then an element of the charge has not been established. However, in a situation where there is no documentary evidence to support such an allegation, I accept that it is in the appellant's favour to treat the issue as a defence under s 24 of the Code. In any event, the evidence, and the approach to the evidence is the same either way. Further, in my view, the result would be the same on either approach so no error has occurred which has in any way affected the outcome of the charges.
68 The Magistrate noted her concern that the appellant's version of events actually amounted to a mistake of law which is not a defence.
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- However, the Magistrate considered that the mistake was whether or not a licence under the relevant legislation was necessary for the commencement of proceedings of the building. If that was the mistake relied upon then I agree that it would be a mistake of law. In my view, the mistake which the appellant relied upon was that he had approval to relocate the games room, because of the statements made to him by Mr Walker, because of the granting of the Special Licence, as well as the appellant's understanding of other documents. Put in that way, it can properly be described as a mistake of fact.
69 Ultimately, this difference of view is of no moment because, despite her misgivings, the Magistrate proceeded to treat the defence raised by the appellant as a mistake of fact. Under s 24 of the Code the mistake made by the appellant must be both honest and reasonable. The Magistrate looked at the body of evidence available to her to determine whether the prosecution had established beyond a reasonable doubt that the appellant was not operating under a honest and reasonable belief that he had approval.
70 Reference was made to the Special Licence and the sketch accompanying it which did not include any other building except a reference to a shed to the rear. She concluded that the Special Licence in no way related to the later erection of the games room. The Magistrate also considered the letter from the appellant to the Shire dated 18 November 2002 in which he stated that he wished to apply to have his games room relocated to the premises at Lot 182. She also noted that no other documents were attached to that letter, either an application form or a plan. The Magistrate also referred to the Shire's letter to the appellant of 21 December 2001 which informed the appellant that separate building approvals would be required for any further structures on Lot 182 such as a shared garden shed, carport or granny flat. Consideration was also given to the letter from the Shire to the appellant dated 31 January 2003 advising that no such application would be considered until conditions pursuant to the planning consent and Special Licence have been satisfied. She noted the evidence of Mr Walker that the Shire has received no correspondence or evidence suggesting that the condition in the planning consent and Special Licence have in fact been satisfied and he had not certified that the building did comply with the conditions. The final document considered was the letter of 21 March 2003 from the Shire to the appellant returning the plans or sketches and advising that in order for Council to consider his application he would need to complete an application for planning approval form, which was enclosed, and the
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- completed form together with the plans and specifications must be accompanied with the information referred to in cl 4.2 of TPS 1.
71 The Magistrate also considered the evidence of Ms Lee of her conversation with the appellant about the games room in which he said that he had "jumped the gun" but he thought it would now be okay now the building was there. Despite the fact that the appellant denied that evidence, the Magistrate concluded, as she was clearly entitled to do, that she preferred and accepted the evidence of Ms Lee on this point.
72 The documents tendered by the prosecution and the evidence of Mr Walker and Ms Lee persuaded the Magistrate beyond a reasonable doubt that the appellant did not have an honest belief that he did not require a licence to erect the games room. As I have noted above, in my view, the belief allegedly held by the appellant is that he had approval because he had been advised by Mr Walker that the Special Licence covered the games room. However, as I have indicated, nothing turns on this distinction.
73 The Magistrate also indicated that she accepted the evidence of Mr Walker that the Special Licence was not extended in any event, even if that licence did in some way cover the games room. She also found that the belief which the appellant alleged he held at the time was not a reasonable belief in view of the correspondence to which she referred.
74 Finally the Magistrate addressed the appellant's assertions that the Shire and, in particular, Mr Walker had been deceitful or had in some way prevented the applications being put before Council. The Magistrate did not accept those assertions. She accepted Mr Walker's evidence that the reason the applications were not put before Council was because no application for a building licence had been received and the plans provided by the appellant did not comply with reg 11. Further, the Magistrate noted that the previous correspondence from the Shire advising the appellant that no further applications would be considered until he had complied with the conditions on the planning and building approvals for the dwelling house, was consistent with not placing any of the appellant's applications for approval before the Council as there was no evidence provided to him that there had been compliance with the conditions. Accordingly, the Magistrate made orders of conviction in relation to each of the charges and made the additional orders sought.
75 It is clear from the reasons for decision that the Magistrate did not accept the evidence of the appellant. She did accept, and clearly
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- preferred, the evidence of Mr Walker which was capable of establishing the elements of the offence as the Magistrate found. I am satisfied that there is no error affecting the outcome of the charges in the Magistrate's reasons.
Grounds of appeal
76 I turn now to the specific grounds of appeal.
Ground 2
77 This ground alleges that Mr Anning, the Shire's Chief Executive Officer at the relevant time, and the complainant, was not available to be cross-examined because he was not called as a witness by the Shire. The appellant alleges that he was unaware that it was his responsibility to summons the complainant.
78 The appellant submitted at the hearing of the appeal that he had an interview with the Chief Executive Officer and the Shire President, Mr Michael Anspatch in April 2003 as a result of which he was referred to Mr Walker's office to finalise the details for the games room. He alleged that at the meeting the Chief Executive Officer said that all the necessary paperwork was before the Council and all that was left was to "get the go-ahead from Trevor Walker". The "necessary paperwork" to which it is alleged the Chief Executive Officer referred must relate to the planning applications because even the appellant admitted that they were the only applications he had filed. This would appear to be the same meeting referred to at trial as having occurred in March.
79 In an attempt to understand the thrust of this evidence, the appellant was asked if he went to see Mr Walker for the building licence. However, his response was that he already had one and "you can't have two on the one property", which is a different proposition to the evidence he gave at trial that the Special Licence also included the games room because it was appurtenant to it. In his submissions in support of this ground the appellant stated that he wanted to question Mr Anning as to when the Special Licence ran out, however, that was a matter dealt with by Mr Walker and there is no suggestion that Mr Anning would have had direct involvement in that issue. The appellant also said this:
"By having Mr Phil Anning cross-examined, we can find out where the building licence went that I had on my property for two years and three months, which covered the time that the games room was put there."
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80 However, the issue of where the building licence, or Special Licence, "went" or, more accurately, the nature and extent of any extensions to the Special Licence was addressed at trial through documentary evidence and the evidence of Mr Walker, which was accepted by the Magistrate. Further, if he did not go to see Mr Walker and "get the go-ahead", it is difficult to see how the evidence of Mr Anning would advance the appellant's case. The evidence of Mr Walker, which was accepted by the Magistrate, is that he was the only person who had the power to authorise a building licence. Implicit in this is that Mr Anning had no such power. Even the account of the meeting given by the appellant indicates that Mr Anning considered that the final approval had to be obtained from Mr Walker.
81 The reason the appellant gave at the hearing of the appeal as to why he did not call Mr Anning was that he did not know that he was not going to be in attendance at the trial and he did not know it was his responsibility to call him if he wished to question him. Because Mr Anning was named as the complainant, the appellant assumed he was going to be there.
82 The absence of Mr Anning came to the attention of the appellant in the course of the cross-examination of Harry Hawkins, who was at the time of trial the Chief Executive Officer of the Council. Mr Hawkins was the Finance and Administration Manager at the Shire until 31 December 2004 when he was appointed Chief Executive Officer. A number of the questions put to him by the appellant related to matters which occurred before he took up the position of Chief Executive Officer and, quite properly, the Magistrate refused to allow questions to be put to the witness about matters which occurred prior to his appointment. The following exchange is the entirety of the discussion concerning Mr Anning's absence:
"HER WORSHIP: Well, he wasn't the CEO at the time, Mr Stock.
MR STOCK: So I'm being brought to - I just need to get this straight. So I'm being brought to court by somebody who I can't cross-examine, is that right?
HER WORSHIP: Well, he hasn't been called as a witness by the Shire. There was -
MR STOCK: He's left the country as far as I'm aware.
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- HER WORSHIP: Well, if he was here and you wanted him to give evidence, then you could have subpoenaed him or summonsed him rather, Mr Stock. But this witness was not the CEO at the time."
83 The respondent relies on the following propositions in support of its submission that there is no substance in this ground of appeal:
1. There was no requirement on the prosecutor to call Mr Anning as a witness;
2. No adjournment was sought by the appellant to enable Mr Anning to be called as a witness;
3. Mr Anning had no power to grant a building licence and, therefore, his evidence was not necessary to the issues in question;
4. The absence of evidence from Mr Anning did not result in an unsafe or unsatisfactory verdict, or in the appellant losing an opportunity to be acquitted.
- I accept each of these propositions. It is well established that the responsibility of determining the witnesses to be called to establish the prosecution case lies solely on the prosecution and that the prosecutor's decision is not open to judicial direction, appeal or review: R v Apostilides (1984) 154 CLR 563 (at 575); Richardson v The Queen (1974) 131 CLR 116 (at 119). Counsel for the respondent conceded that circumstances might arise which place on a Magistrate a duty to advise an unrepresented litigant of the right to apply for an adjournment. However, those circumstances did not arise in this case.
84 It can be seen from the exchange between the Magistrate and the appellant referred to above that, as counsel for the Shire submitted, at no time did the appellant request an adjournment, a procedure of which he was aware because of a discussion at the commencement of the trial with respect to certain proceedings in the State Administrative Tribunal ("the Tribunal"). Neither did the appellant indicate the perceived importance of the witness to his defence. He simply aired his assumption that the witness would be in attendance because he was the complainant. The appellant was also aware of his right to summons witnesses because he did summons two employees and two councillors and his neighbour to be witnesses.
85 Further, the appellant stated that Mr Anning had left the country. It is apparent that he had made some inquiries about his whereabouts
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- although he does not mention the reason for making those inquiries. As he was aware Mr Anning had left the country, he could not reasonably have had a clear expectation that Mr Anning would attend. This factor, on its own, should have been sufficient to cause the appellant to contact the Shire and/or its solicitors to enquire whether Mr Anning would be in attendance. This he did not do.
86 The final and, in my view, fatal point in relation to this ground of appeal is that the evidence which the appellant seeks to adduce from Mr Anning, and, it would appear, the only direct evidence he could give, is entirely irrelevant as it relates solely to the planning applications. The Magistrate carefully and repeatedly advised the appellant that the planning applications were not relevant to the charge, a fact which the appellant simply refuses to accept.
87 In my view, there is no merit in this ground of appeal.
Ground 3
88 This ground alleges that Mr Anspatch, the Shire President, failed to bring his diary, which would prove that the Chief Executive Officer acknowledged that the three applications for planning consent were in the possession of the Chief Executive Officer and that all that was required was to get the go-ahead from Mr Walker.
89 It can be seen that there is a certain commonality between this ground and ground 2 as it relates to the same meeting and raises the same issues.
90 The only remedy available at trial would be an adjournment. A failure to bring a document such as a diary can only be the basis for an adjournment if the witness was required to bring the document and failed to do so or if the material in the diary was of such a nature as to create unfairness if it were not produced. As to the first of those issues, Mr Anspatch was served only with a witness summons under s 159(1)(a)(i) of the Criminal Procedure Act 2005 ("CPA") requiring him to attend Court to give oral evidence. He was not served with a witness summons under s 159(1)(a)(ii) of the CPA requiring him to produce the diary or any other document. Therefore, Mr Anspatch was not under any obligation to bring his diary with him to Court.
91 Initially, the appellant submitted to this Court that he believed the diary was covered by his summons to the Shire to produce all documents relating to Lot 183. However, the appellant then conceded that he did not
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- know that Mr Anspatch had made notes of the meeting in his diary until Mr Anspatch gave evidence. In fact, Mr Anspatch did not suggest in his evidence that he made notes in his diary. His only reference to the diary was when he was asked at the outset whether he recalled a meeting in April 2003 between the appellant, the Chief Executive Officer and Mr Anspatch. Mr Anspatch's response was that he recalled the meeting but could not be sure of the exact date that he requested a meeting. As the appellant commenced to ask leading questions of a witness called by him, the Magistrate put the question for him in an appropriate form by asking Mr Anspatch if there was anything discussed at the meeting with the Chief Executive Officer concerning the matters before the Court. He said that he could not recall. He was then asked by the appellant whether he had a diary and stated that he did but he did not have it with him. The following question was then put to him:
"Okay. So is it possible that you would have made entries in your diary respecting this - the interview of the day?---Not of all the bits and pieces."
93 As to the second issue, according to the submission made by the appellant, the purpose of seeking access to Mr Anspatch's diary was to establish that the Chief Executive Officer was at the relevant time in possession of the applications for planning consent with respect to the games room. As I have indicated, the existence, grant or refusal of planning applications is entirely irrelevant to either of the charges before the Magistrate.
94 In those circumstances, and apart from the fact that the appellant did not seek an adjournment at the time, there was no basis upon which an adjournment could properly have been granted by the Magistrate.
95 There is no merit in this ground of appeal.
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Ground 4
96 The appellant alleges that a Mr Ray Galbraith was in partnership with him to relocate houses and Mr Galbraith is alleged to have witnessed violence and misconduct by Mr Walker. The stated purpose of calling him was to give evidence of Mr Walker's demeanour.
97 It was apparent from the transcript of the hearing and from the submissions made by the appellant at the hearing of the application for leave to appeal that he considered the trial of the charges to be an opportunity to canvass any of his dealings with the Shire and its representatives, to put any interpretation on those dealings that he chose, and to make wide ranging allegations of misconduct. He considered that he would be able to support his views by calling witnesses who had also had difficulties with the Shire. At one point the appellant made a very serious and, in my view, a completely unsubstantiated allegation that Mr Walker deceived Council with respect to the provisions of a town planning scheme. It was apparent that the appellant has absolutely no understanding of the procedures by which a town planning scheme comes into effect and, whilst that may be understandable, there is no excuse for relying on that ignorance in order to make serious allegations about a person carrying out their duties.
98 It is apparent from the enquiries which the Magistrate made about the purpose of calling Mr Galbraith that the appellant intended to lead evidence from him about difficulties he had encountered with the Shire and its representatives. The Magistrate informed the appellant that such matters were not relevant to the charge. In my view, that conclusion was entirely correct. At the trial the Magistrate explained to the appellant what was relevant to the charge and, when he attempted to adduce certain evidence, made it clear to him what was not relevant. At the hearing of the application, the appellant asserted that Mr Galbraith had been present when Mr Walker served documents on him and that Mr Walker stated that the Council had revoked or changed their mind about his licence. However, that proposition was never put to Mr Walker or the Magistrate and did not appear in the grounds of appeal or in the supporting affidavit. Ultimately, the appellant was unable to identify any evidence which Mr Galbraith could give that would be relevant to the charges and that he had made any attempt to rely on in establishing the purpose of calling the witness. In those circumstances the Magistrate was entirely correct in her determination that the evidence of Mr Galbraith did not address the elements of the offence or any defence properly open to the appellant. A charge of this nature cannot be defended by another person making
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- allegations in relation to his or her dealings with the Shire and/or its representatives in relation to other matters.
99 For these reasons I would dismiss ground 4.
Ground 5
100 The appellant alleges that Mr Geoff Erickson, who was a councillor who had helped him with his dealing with the Shire, was not allowed to give evidence on his behalf.
101 The purpose identified at trial for calling Mr Erickson was to ask him about the letter dated 5 March 2004 from the Shire's Rates Officer to the appellant which states that Mr Walker had advised that the plans for the appellant's games room were submitted with an application for planning consent which was declined by Council. In his evidence, Mr Walker disputed the accuracy of the letter's content which was not written by him. As far as I can understand the appellant's submission, Mr Erickson was to put that letter to Council and the appellant intended to ask him the result of presenting a letter to counsel which states that that Mr Walker did something that he did not actually do. The appellant further submitted that Mr Erickson could shed light on why the Shire was not going to allow him to proceed with his paperwork. He was also the go-between in negotiations between the appellant and the Shire.
102 Before this Court, the appellant raised an entirely different purpose behind calling Mr Erickson. The appellant suggested that the decision to grant the extension to his building licence was made by Council including Mr Erickson and that Mr Walker failed to send the appellant the paperwork. Attempts to obtain an explanation for not making this information known to the Magistrate apparently caused the appellant some confusion. He responded by making several references to the problems caused to him by Mr Walker providing him with an extract from a town planning scheme. The appellant alleged that the extract had been altered by Mr Walker so that the appellant would rely on it to his detriment. Of course, none of that information would explain why he had not raised at trial the allegation that he had an approval from counsel which Mr Walker had failed to forward to him. Further, as I have already noted, the terms of any town planing scheme were not relevant to the charges because the charges alleged a failure to obtain approval for a building licence, not planning approval.
103 The Magistrate ruled that none of the evidence to which the appellant referred at trial would assist her in determining whether the charges were
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- proved. In my view, that conclusion is without error. There is nothing in the material provided at trial or any matter put before this Court on the application for leave to appeal which indicates that the evidence of Mr Erickson was relevant to the charges.
104 There is no substance in this ground of appeal.
Other allegations of error
105 At trial and on appeal the appellant attempted to address every aspect of his dealings with the Shire over the years and to raise any and all criticisms he has of the Shire. The appellant even referred to a clerical error where he was twice charged for an inspection, despite the fact that the Shire conceded the error and repaid the money. The Notice to remove the games room was described by the appellant as an act of "trickery". In particular, the appellant saw the cross-examination of Mr Walker as an opportunity to make broad, unsubstantiated and mostly irrelevant accusations against him in his role of building surveyor.
106 On appeal the appellant maintained that, during the course of the trial, "it seems as though everything got pushed out of place and everything was sort of misrepresented". However, on reading the transcript it is apparent that the difficulties the appellant had in this Court in explaining his position and identifying relevant matters were much the same difficulties he had at trial and largely resulted from an unwillingness or inability to accept propositions or directions with which he did not agree.
107 At an appropriate stage in the trial the nature and scope of the charges was explained to the appellant, in particular the fact that it was an absence of building approval which was at the heart of each charge and that planning issues were of no relevance. In fact, this information was repeated time and time again because the appellant persisted in questioning witnesses and giving evidence on his alleged attempts to obtain planning approval and also on the reasons why it was not granted.
108 The Magistrate asked the appellant to state the basis upon which he was defending the charges against him, clearly so she could exercise the necessary control over the appellant to ensure that the questions he asked and the issues he raised were only those that were relevant to the charges. This exercise also had the effect of identifying to the appellant the matters he should address in order to defend the charges. Further, as I have indicated, the Magistrate gave the appellant all necessary assistance as well as providing him with numerous opportunities to explain his position
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- and the approach he was taking and to substantiate his assertions. Despite this assistance, the appellant persisted with his allegations of misconduct and in dealing with planning and building approvals as if they were the same or as if only one of the two was required before construction could take place. Consequently, most of the matters the appellant raised at trial and on appeal related to planning approval and not to the relevant issue which was whether building approval had been obtained. Essentially, the appellant refused to accept the Magistrate's ruling on relevance, both at trial and in the course of this application although that ruling is not the subject of a specific ground of appeal.
109 The affidavit in support of the application for leave to appeal, to which I have already referred, consists of serious, unsubstantiated and, I have concluded, wholly irrelevant accusations of misconduct by Shire officers. Accusations of this type have no place in an affidavit seeking leave to appeal against a conviction on charges of this nature. The affidavit also makes assertions in relation to documents which are not supported by the content of those documents.
110 It was apparent from the appellant's submissions and the content of the affidavit that the allegations raised by him go well beyond those identified as grounds of appeal and include matters which clearly call into question the Magistrate's rulings on relevance. I have already determined that the Magistrate's ruling on the relevance of planning issues is without error. It is only because the appellant is unrepresented that I have given any consideration to some of the other matters raised by him.
(a) Reliance on the Special Licence
111 I have dealt with this issue in the context of the Magistrate's reasons for decision in order to determine whether her approach to the issue was in error. However, because it is the defence identified by the appellant at trial, and the only relevant matter raised by the appellant, I propose to deal with the allegation in greater detail.
112 In response to direct questioning by the Magistrate, the appellant stated that his defence was that Mr Walker gave him permission to relocate the games room to Lot 182. According to the appellant, when he asked Mr Walker about applying for a building licence he was told that he did not need one as there was one already on the property which had been extended to the shed. The appellant maintained that this information was given to him verbally by Mr Walker on 20 March 2003 in Mr Walker's office. At another point the appellant put the proposition in this way: Mr Walker said to him that as far as he was aware there was a building
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- licence in place for the dwelling house which had been extended for the shed and it was then extended for the games room. On occasions the appellant's assertion was that he had obtained a Special Licence which was effective at the relevant time because it had been extended by Council. Of course, in order for the Special Licence to provide authorisation for the erection of the games room it would not only have had to be extended to cover the date on which the games room was relocated to Lot 182, it would also have to authorise that particular construction. The proposition put to Mr Walker in cross-examination was that on 8 May 2003 the appellant was "given the go-ahead for this project". That proposition was emphatically denied.
113 In his submissions in support of this application, the appellant effectively maintained the position taken at trial that Mr Walker told him that the Special Licence covered the games room because the games room was appurtenant to the dwelling house. In his evidence at trial, Mr Walker firmly denied that he told the appellant that because the games room was appurtenant to the dwelling house it was covered by the original building licence.
114 As I have indicated, the Shire did not address the issue of whether the Special Licence extended to cover the period of time in which the games room was erected on Lot 182 or whether a period of grace had simply been given to the appellant to complete the dwelling house. The Shire's position was simply that the Special Licence did not extend to or relate to the erection of the games room. It is, therefore, unnecessary for the purposes of this application to determine whether, as the appellant asserts, by including par 1 in the text of the Special Licence, the Council restricted itself to granting 12 month extensions as opposed to granting a Special Licence which would have effect for any time specified by the Council (as it was empowered to do under s 399(4) of the Act).
115 Mr Walker described the appellant's suggestion that he had extended the Special Licence to cover the games room as absolute nonsense. He denied that he had ever suggested to the appellant that he could put a games room on the property without a building licence and without planning approval. Mr Walker stated:
"I'm not in a position to do that. The plan … that was approved clearly showed that it was for a house. The legislation just doesn't allow me to say you can put a building up illegally. It's absolute nonsense to suggest that I would say that."
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- As I have already indicated in these reasons, the terms of the Special Licence, in particular the reference to the plans as identifying the scope of the matters covered by the Special Licence, do not authorise the erection of a games room on the property. Another factor militating against the appellant's proposition is the nature of the structures which can properly be the subject of a Special Licence under s 399 of the Act.
116 Mr Walker stated in his evidence that he was not aware of the Special Licence ever being extended to cover the shed in the backyard. As far as he was aware there was never any building licence issued for the shed. He explained that when he started with the Shire the shed was already there. He had no knowledge of how it got there and there are no records of a building licence being issued.
117 The various documents to which I have referred in the summary of events are, in my view, consistent with approval for the erection of a dwelling house only on Lot 182 and consistent with an intention not to grant approval for the erection of the games room until the dwelling house was completed. On any interpretation the documentary evidence provides no support for the proposition being put by the appellant. Whilst the appellant may not have appreciated that the Special Licence did not allow the construction of any further structures on Lot 182, I believe it would have been apparent to him, or made apparent to him, during the course of his dealings with the Shire. However, the impression that I have gained of the appellant is that he does not accept information which is inconsistent with his own interpretations or inconsistent with what he wishes to do.
118 More importantly, however, this issue was raised at trial and given full consideration by the Magistrate. The evidence of Mr Walker explaining the extent of the approvals in place was accepted. In particular, the Magistrate accepted Mr Walker's denial of any verbal extension of the Special Licence. Consequently, the Magistrate rejected the submission that the Special Licence permitted the construction of the games room. The documentary evidence is entirely consistent with this conclusion and no other matter of relevance has been put before me which casts doubt on that conclusion.
119 The appellant also explained that his defence involved the fact that the basis of the decision not to consider any further applications, including his application for relocation of the games room, was because the dwelling house was not complete. The appellant denied that the dwelling house remained unfinished but was unable to adduce any evidence, such as photographs, which would support that view. In his evidence Mr Walker confirmed that the Council had resolved that it would not
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- consider further planning consent applications until the conditions with respect to the dwelling house had been completed. He also maintained that the dwelling had not been completed and he had not been advised of that nor called upon to inspect the house and confirm its completion.
120 Of course, even if the dwelling house had been completed and the Shire should have considered the application to erect the games room, the fact that the Shire acted on an incorrect premise in refusing to issue building approval for the games room did not give the appellant the right to erect the games room without building approval and hence cannot provide a defence to a charge involving the absence of building approval. Other remedies lie to enforce proper consideration of applications of this type if it is established that the Shire has failed to act lawfully in the exercise of its powers with respect to planning and building approvals. However, no evidence has been put before this court which would support such an allegation
(b) Failure to put application and plans for games room before Council
121 As with all other attempts by the Magistrate to curtail the appellant's desire to revisit every aspect of his dealings with Shire, the appellant would not accept that disputing the basis upon which it was decided not to put his plans to Council was irrelevant and did not operate as a defence to the charge.
122 The evidence adduced at trial indicates that the application and accompanying plans which the Chief Executive Officer declined to put to Council was an application for planning approval. Although the appellant's initial request for approval was silent as to the type of approval sought, there are two factors which indicate that the request was being treated as a request for planning approval. The first factor is that the Shire required planning approval to issue before building approval would be considered or granted. The second is that it is only applications for planning approval which are put before Council as building approvals are dealt with by the Building Surveyor under delegated authority. Mr Walker explained in his evidence that he has a delegation from the Chief Executive Officer to receive building plans and approve them if they comply with the legislation. If they do not comply with the legislation he is obliged to ask for further information.
123 This is yet another example of the appellant's failure to appreciate or give consideration to the difference between planning and building approval. Not only was planning approval irrelevant to the charges, as the Magistrate correctly determined, but the fact that plans were or were not
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- put to Council is irrelevant to either charge before the Court as it is the lack of building approval, not the failure to consider or approve the plans, which is the essential element of the first offence. Consequently, this issue should not have been addressed at trial either by cross-examination of the Shire's witnesses or by the appellant giving evidence of these events.
124 Nevertheless, the appellant persisted with this issue as the basis of an attack on Mr Walker's credibility. At trial, Mr Walker was asked when he submitted the appellant's plans to Council. As I have indicated, he made it clear that plans in support of a building licence are not submitted to Council because of the delegation of the authority to approve building applications.
125 Amongst the accusations levelled at Mr Walker by the appellant was that he told the Minister that the appellant never put any plans into Council. Mr Walker denied this and maintained that he said that no plans had been approved, which was clearly the case. As part of this attack on Mr Walker the appellant relied on the letter of 5 March 2004 where the Shire's Rates Officer wrote to the appellant in response to his telephone inquiry and stated that Mr Walker had advised that the plans for the appellant's games room were submitted with an application for planning consent which was declined by Council. The Rates Officer further stated that there were no building applications on file. Based on the content of that letter alone, the appellant made the accusation that Mr Walker had hidden his plans for the games room and denied they existed. The Rates Officer's statement with respect to the conversation with Mr Walker is, of course, hearsay. All other documents produced to the trial Court and to this Court indicate that the application was not submitted to Council because the Shire declined to consider the application until conditions pursuant to the Planning Approval and the Special Licence with respect to the dwelling house had been satisfied. The existence or suitability of any accompanying plans simply was not relevant to the decision not to put the request for approval of the games room to Council. It was solely the appellant's failure to comply with the conditions of the approvals for the dwelling house which formed the basis of the decision. Further, whilst the plans which were provided were considered by Mr Walker to be inadequate for the issue of a building licence, no building licence application had been made by the appellant and no building licence could be issued without planning approval first being granted.
126 Mr Walker rejected the proposition set out in the letter from the Rates Officer of 5 March 2004 that the plans and sketches for the games
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- room were submitted with an application for planning consent which was declined by Council. He further denied that he had told the Rates Officer that he had put the plans to Council. Mr Walker maintained that the plans were never submitted to Council because the appellant had already been advised in writing that no further applications would be considered. It would appear that this comment is a reference to the letter dated 31 January 2003. Mr Walker denied the proposition put to him by the appellant that he had told the Rates Officer he had put the plans to Council.
127 There was another matter raised by the appellant which again indicates the extent of the criticisms made against Mr Walker relating to matters which could not affect the outcome of the charges. A reference in the minutes of a meeting of Council to the fact that the games room had been relocated without approval was taken by the appellant as a statement that approval had been refused. Mr Walker was then cross-examined to the effect that he was making inaccurate or untruthful statements because the applications for approval had not been put to Council and therefore not refused. This habit of twisting the meaning of documents with perfectly clear content reflects poorly on the appellant and was the basis of many of his attacks on the credibility of Mr Walker.
128 Not only were these allegations irrelevant to the charges they were, in my view, without any reasonable foundation. The Magistrate properly declined to take them into account in reaching her decision and in forming her views on credibility.
(c) Exemption from obtaining a building licence
129 The appellant also raised the proposition that the games room was in fact a builder's shed used by builders or contractors employed to construct any building or to execute any work on a building already constructed and hence, under reg 4(1)(b) of the Building Regulations 1989, did not require a building licence. This proposition is linked to the appellant's allegation, denied by Mr Walker, that it was the building surveyor who suggested that the structure be described as a games room. It was also suggested by the appellant that Mr Walker could allow the building to remain there for site works if he wanted to.
130 I consider this to be another completely irrelevant issue raised and relied upon by the appellant. It is clear that reg 4(1)(b) is intended to relate to a small structure adequate to store and protect work equipment during construction. No evidence was adduced to support a conclusion that the games room is such a structure or was being used for the purpose
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- of storing building equipment. Nor can it be said that the storage of any such equipment was for the purpose of construction of, or additions to, a building. On the appellant's evidence the dwelling house was complete. There was therefore no site works being carried out which would require the storage of the necessary equipment. In any event, on the appellant's evidence, there already existed a shed on the site which could serve such a purpose. Further, if the building was only temporary, no explanation has been provided for why it remains on Lot 182.
131 However, the real flaw in this proposition is that no such exemption was granted. It was made perfectly clear to the appellant that approval would be required. It is not a defence to the charges brought against the appellant that the Shire could have, or should have, granted him an exemption. Nor is it a defence to maintain that the Building Surveyor could have allowed the building to remain if he wanted to. In circumstances where the games room had been relocated without the necessary approvals, and in view of the appellant's previous poor compliance with the Shire's directions on planning and building issues, it was incumbent on Mr Walker to bring this matter to the attention of Council. No criticism can be levelled at Mr Walker for acting in accordance with his responsibilities as Building Surveyor.
132 Further, Council resolved that the games room be removed. The fact that it could have adopted an alternative resolution which did not require permanent removal of the games room if it had wished to, is of no relevance to the charges. Further, once Council had resolved to require the games room to be removed, Mr Walker was required to implement that decision.
(d) Movement of games room to another lot
133 Even the Shire's attempts to assist the appellant were taken by him as manifestations of misconduct. When the appellant was advised that the Council were prepared to allow him to move the games room to a rural property whilst he obtained the appropriate planning and building approvals, this was taken by him as evidence of victimisation. In his evidence at trial, the appellant asserted that this offer showed that it was alright for the building to be on someone else's property without approvals but not his.
134 Mr Walker explained that his suggestion to move the games room to a rural property was in an effort to assist the appellant to "get his act together" and get a planning consent through Council so he would not have to sell or otherwise dispose of the games room. It was because
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- moving the games room to another location was an interim or temporary solution only that the other landowner was not required to obtain the relevant approvals. There was no legal requirement for Mr Walker to take that action in order to assist the appellant. In fact, contrary to the proposition being put by the appellant, the offer to allow the games room to be removed and then returned once approval was obtained is an example of the lengths to which the Council was prepared to go to accommodate the appellant so that he would not lose the games room.
135 This is yet another example of the appellant's misinterpretation of the motives of the Shire's officers and the purpose of certain actions taken by the Shire. It is also an example of a matter which the appellant was told was irrelevant but which he continued to pursue.
136 In my view, this complaint against Mr Walker is without substance and is of no relevance to the charges of which the appellant was convicted.
(e) Minister for Housing appeal
137 At the time the Notice under s 401 of the Act requiring removal of the games room was served on the appellant an appeal lay to the Minister for Housing. It is only if the Notice was overturned on appeal that the appeal to the Minister would have any relevance to the charge of failing to comply with the Notice. However, the appellant's appeal was unsuccessful and hence the circumstances of the appeal were in no way relevant to the charges that he faced. Despite the fact that the appeal was unsuccessful, at trial and on appeal the appellant tried to turn the appeal to his benefit by misstating the outcome. Having read the reasons of the Minister, which are in the clearest terms, the only conclusion which can be drawn is that this conduct on the part of the appellant was deliberate. In particular, the appellant submitted to this Court that the outcome of the appeal was as follows: "so they dismissed it and said, we have got to sort it out ourselves … ". The clear implication of that statement is that the Minister did not find in favour of the Shire but left the matter for the parties to resolve. As I have indicated, what in fact occurred was that the Minister dismissed the appeal against the notice. The Minister referred to the fact that the appellant was given the opportunity to confirm that the building complied with the Building Code of Australia and to provide confirmation that the Chief Executive Officer had authorised the games room as he alleged, but the appellant was unable to do so. Insofar as the parties may have been given an opportunity to resolve the dispute, there
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- was no requirement on the Shire to resolve the dispute on the appellant's terms or at all.
138 It can be seen that there is no aspect of the appeal to the Minister for Housing that supports the appellant's complaints against the Shire or his allegations of error in relation to his conviction on the two charges.
(e) The Shire's town planning scheme
139 A recurrent theme in the appellant's submissions on the application for leave was that he had obtained some information from the State Administrative Tribunal which established that Mr Walker had deceived Council and that the appellant had been victimised by the Shire and its officers. At the commencement of the trial, the appellant attempted to persuade the Magistrates Court not to deal with the charges because matters relevant to the games room were being dealt with in the Tribunal. Based on the only document which the appellant produced to the Court, the Magistrate determined that the action in the Tribunal related to a different property.
140 However, the appellant alleged that in the course of his dealing with the Tribunal an officer of the Tribunal provided him with a copy of TPS 4 which was said by the officer to be the scheme in operation at the relevant time. As indicated in the above summary of events, on 21 March 2003 Mr Anning wrote to the appellant, returning the plans for the games room which had been forwarded to the Shire without an accompanying application form, and advising the appellant that he would need to complete the Application for Planning Approval Form which was enclosed. The letter referred to and enclosed a copy of an extract from TPS 1 which was said to contain the information required for the application to be considered by Council. The portion of the extract which relates to applications for planning consent is cl 4.2 which comprises cl 4.2.1 and cl 4.2.2. Clause 4.2.1 states that every application for planning consent shall be made in the form prescribed in Sch 3 to the scheme and shall be accompanied by such plans and other information as is required by the scheme. Clause 4.2.2, which I have summarised earlier in these reasons, sets out in some detail the information which is required to accompany every application, unless Council waives any particular requirement.
141 The appellant alleged that the extract from TPS 1 which was annexed to the letter of 21 March 2003 had been changed by Mr Walker to suit his prosecution of the appellant. He said: "Ma'am, what I am saying, okay, is that at all times I have complied with what the town planning scheme is
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- and to suit a prosecution of the building inspector, he has altered 4.2 and, my belief is, deceived council in what the order actually is. It has taken two and a half years to get a copy of that document, ma'am."
142 The extract from what is said to be TPS 1 differs in format and style from the same clauses of TPS 4. However, in relation to the content, the only difference is that the term "consent" in TPS 1 has been replaced by the term "approval" in TPS 4. In every other respect the terms of cl 4.2.1 and cl 4.2.2 in TPS 1 are identical to cl 4.2(1) and cl 4.2(2) in TPS 4. Therefore, the material given to the appellant with respect to the information to be included in a planning application was entirely correct.
143 Neither party was able to enlighten me as to which schemes actually applied at the relevant date. The appellant merely repeated the statement of an unknown officer of the Tribunal. Counsel for the Shire correctly pointed out that, as the scheme related only to planning approval and not to building approvals, it was irrelevant to the charges and no attempt had been made to address the issue of which scheme was the relevant one or whether, as indicated in the letter, the extract provided to the appellant on 21 March 2003 was in fact from TPS 1.
144 One would think that it was stating the obvious to say that the Shire's town planning scheme related only to planning approvals and therefore was of no relevance to charges alleging an absence of building approval. Unfortunately, the appellant refused to accept that proposition even when it was pointed out to him by me. The appellant maintained, despite being repeatedly told to the contrary, that the approval referred to was both planning and building.
145 In developing his allegation in relation to the extract from TPS 1 the appellant emphasised the reference to Council's power to waive any particular requirement. Of course, that phrase is common to both schemes and hence the appellant was aware from the outset that this power existed. In any event, it simply does not assist the appellant to assert that Council could have waived any of the planning requirements when it did not do so and was not obliged to. In TPS 1 and TPS 2 the power to waive the stated requirements is unfettered. The appellant could not have forced the Shire to waive the requirements and hence reference to the power does not evidence error and bears no relationship to the charges of which the appellant was convicted.
146 Another issue raised by the appellant was the terms of cl 4.1(2)(g) of TPS 4 which states that planning approval is not required for the erection
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- on a lot of a single dwelling house including ancillary outbuildings, in a zone where the proposed use is designated with the symbol "P" in the cross reference to that zone, unless specific provisions of the scheme requires the express approval of Council. It is apparent from the appellant's submission that he believed that this clause applied to his situation. Whether or not it did depends on a number of factors and no evidence of these factors was put before me by either party. I am therefore not in a position to determine whether that clause would in fact afford the appellant any relief from requiring planning approval. The only point I would make is that the appellant should not assume that the erection of the games room would fall within the clause.
147 More important, however, is the fact that the clause relates solely to planning approval which, despite the appellant's refusal to accept it, has no relevance, connection or relationship to charges which are based solely on the absence of a building licence.
(f) The Shire's bond policy
148 Both at first instance and on this application the appellant suggested that the passing by Council of a town planning scheme policy involving the imposition of bonds was approved for the purpose of stopping his project and requiring him to pay a large sum of money which they were said to know the appellant did not have. In fact even the appellant was aware that the policy was imposed in December 2002, well before the building was relocated. Nevertheless, the appellant persisted in asserting this proposition as evidence of the Shire's and Mr Walker's malice and determination to prevent him from pursuing his intention to relocate various buildings to Lot 182.
149 Not only is the allegation inherently incredible and unsupported by evidence, it results from a complete lack of understanding of the process involved in implementing a town planning scheme which, amongst other requirements, must be advertised for public comment and have Ministerial approval. As I have noted above, one would not expect a member of the public to be familiar with the process. However, one would not expect a member of the public to make such a serious allegation without making any enquiry to ensure that the allegation had any substance.
150 Finally, it is obvious at least to me, if not the appellant, that this issue of bonds, relating as it does to the town planning scheme, bears no connection to the charges against the appellant.
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Conclusion
151 Before this Court the appellant simply reiterated his defence that the Special Licence had been extended and covered the construction of the games room. No other matter raised by him was in any way relevant to the charges laid against him and I would caution the appellant against making further unsubstantiated and unwarranted accusations against Mr Walker and the Shire in the context of these charges. The appellant's alleged reliance on the Special Licence for authority to relocate the games room to Lot 182 was dealt with at trial and the Magistrate preferred the evidence of Mr Walker, which she was entitled to do. I am mindful of the observations of the High Court in Fox v Percy (2003) 214 CLR 118 (at 129) on appellate deference to the decision of a trial Judge in the context of the danger, at first instance, of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. However, in this case, the evidence of Mr Walker was supported, to a great extent, by documentary evidence. Even the critical issue of the absence of any verbal extension of an existing authorisation to include the games room was consistent with the correspondence between the Shire and the appellant which was produced in evidence. In any event, I consider this to be one of those cases where the Magistrate was indeed the person in the best position to make the necessary determination and an appellate court should not intervene without clear cause: Abalos v Australian Postal Commission (1990) 171 CLR 167 (at 178 - 179); Devries v Australian National Railways Commission (1993) 177 CLR 472 (at 479) per Brennan, Gaudron and McHugh JJ and (at 482 - 483) per Deane and Dawson JJ. There is no matter which has been drawn to my attention in the course of this application which would lead me to conclude that the Magistrate fell into error of fact or law. I have dealt with many of the appellant's allegations even though I consider them to be relevant only to planning approval and hence unrelated to the charges. I have done so in the hope of achieving some finality to this matter.
152 In my view, this application for leave to appeal is wholly without merit. I would refuse leave and dismiss the application.
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