Stock v Anning

The appellant, Michael Stock, sought leave to appeal against his conviction in the Midland Magistrates Court on two charges arising from the building of a free-standing timber framed room referred to as a games room on his property at Lot 182. The first charge, 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. 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. The appellant argued that the CEO Mr Phil Anning was not available to be cross-examined because he was not called as a witness by the Shire, and that the Shire President Mr Anspatch failed to bring his diary which would have proved that the CEO acknowledged that the three applications for planning consent were in the possession of the CEO. The appellant further alleged that Mr Ray Galbraith, who was in partnership with the appellant to relocate a house, witnessed violence and misconduct by Mr Trevor Walker, and that Mr Geoff Erickson, a councillor who had helped the appellant, was not allowed to give evidence on his behalf. The court dismissed the grounds of appeal and refused leave to appeal. The court found that the appellant's inability or unwillingness to accept the correct position on the issue of the different types of approval required for the construction of a building had led the appellant to pursue his application for leave to appeal in an unsatisfactory manner. The court also found that the Magistrate had given the appellant all appropriate assistance to defend himself against the charges and that the Magistrate's reasons for decision were without error. The court concluded that the application for leave to appeal was wholly without merit.