JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SALIBA -v- TOWN OF BASSENDEAN [2012] WASC 430 CORAM : HALL J HEARD : 12 NOVEMBER 2012 DELIVERED : 12 NOVEMBER 2012 PUBLISHED : 14 NOVEMBER 2012 FILE NO/S : GDA 1 of 2012 BETWEEN : CARMEL CHARLES SALIBA Appellant
AND
TOWN OF BASSENDEAN
Respondent
ON APPEAL FROM: Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA Coram : MR P McNAB (SENIOR MEMBER)
File No : DR 157 of 2011 (Page 2)
Catchwords:
Appeal from the State Administration Tribunal - Whether error of law - Whether leave should be granted - Review of notice under Local Government Act 1995 (WA) to remove rubbish and disused material - Whether Tribunal failed to take into account evidence of the appellant
Legislation:
Local Government Act 1955 (WA), s 3.25, sch 3.1 div 1 cl 5A
Result:
Leave to appeal refused
Appeal dismissed Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr T L Beckett
Solicitors:
Appellant : In person
Respondent : McLeods
Case(s) referred to in judgment(s):Paradis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361(Page 3)1 HALL J: This appeal was heard on 12 November 2012. At the conclusion of the hearing I refused leave, dismissed the appeal and stated that reasons for my decision would be published in due course. 2 This is an appeal from a decision made by the State Administrative Tribunal on 16 December 2011. That decision was to affirm a notice (with some amendments) issued by the respondent, the Town of Bassendean, to the appellant, Mr Saliba, pursuant to s 3.25 of the Local Government Act 1995 (WA). The notice required Mr Saliba to remove rubbish and disused material from a property owned by him at 37 Schofield Street, Eden Hill.
3 An appeal to this court can only be brought with leave and on a question of law: s 105 of the State Administrative Tribunal Act 2004 (WA). As to the circumstances in which leave should be granted and what constitutes a question of law see Paradis v The Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16] - [18], [53] - [57] (Buss JA with whom Wheeler and Pullin JJA agreed).
4 An appeal notice was filed by Mr Saliba on 12 January 2012. It was not served on the respondent until many months later and only following orders requiring that service be effected. The notice contains a single ground of appeal which, making corrections for misspelling, reads as follows:
SAT did not take any notice of my evidence and he judged me on her evidence.
5 Attached to the notice of appeal is a witness statement of Ms Sharna Murton, a Senior Ranger for the Town of Bassendean. It would appear that it is this evidence that Mr Saliba was referring to when he referred to 'her' in the ground of appeal. It would appear that his complaint is the Tribunal only had regard to the evidence of Ms Murton and had no regard to any evidence given by him. 6 On the hearing of the appeal Mr Saliba represented himself. He stated that the 'rubbish' and 'untidiness' referred to in the notice and in Ms Murton's witness statement were building materials. He said that he intended to construct a dwelling on land adjacent to 37 Schofield Street and for that purpose had stored bricks and other building materials at the property. He said he had not yet received planning approval but expected to do so. He said that other material was behind the fences of his property and not visible from the street. He disputed that his property was untidy
(Page 4)and claimed that he was being treated unfairly by Ms Murton. He said that he put this information to the Tribunal but that it was ignored.
7 The notice under s 3.25 of the Local Government Act issued to Mr Saliba on 3 February 2011 contained a schedule setting out the material that was required to be removed. That material was as follows:
Front of house Disused wardrobes/cupboards, plastic sheeting, wheelbarrow, carpet pieces, disused household furniture, wooden planks, bucket, brick and garden waste pile, white Mitsubishi Magna - nil plates, loose concrete edging/guttering/pipes/slabs, rocks, tiles and bricks, crate of roof tiles, tyre and wheel, white livestock feed bags and contents, buckets and empty pot plants, general rubbish
Side of house and verge
Soil pile including bricks/rubble/green waste/wood/general rubbish, witches hat, tyre, asbestos fencing sheets/broken asbestos pieces, fibre board fencing sheets/broken fibre board pieces, light stone slabs, metal guttering, disused white four wheel drive registration 7PR 533, sand/soil piles including green waste/rocks/tile pieces/asbestos pieces/bricks, general rubbish
Side and rear of house
Disused household appliances including all washing machines/fridges/ ovens/dishwashers/computers/small appliances, disused household furniture and fittings including all chairs/lounges/sofas/cupboards/toilet cisterns/flyscreens/mattresses/bed frames, loose tiles/bricks/foam/general rubbish, cement mixer, ladder, clothes hoist, 2 x maroon Mazda 626 sedans - nil plates, dry grass over 10 cm in height and any other fire hazards.
8 The statement of Ms Murton noted that by 2 December 2011 a number of the items referred to in the notice had been removed. However, other items were still in place, being:
Front of house Wooden planks, bucket, brick and green waste pile, bricks have been transferred to pallets, loose concrete edging/guttering/pipes/slabs, rocks, tiles and bricks, crate of roof tiles, tyre and wheel, white livestock feed bags and contents, buckets and empty pot plants, general rubbish
(Page 5)Side of house and verge Soil pile including bricks/rubble/green waste/wood/general rubbish, witches hat, tyre, light stone slabs, metal guttering, sand, soil piles including green waste/rocks/tile pieces/asbestos pieces/bricks, general rubbish
Side and rear of house
2 x maroon Mazda 626 sedans - nil plates, cement mixer, wheelbarrow from front yard has been moved to this section of rear yard.
9 Photographs evidencing the state of the property both at the time the notice was first issued and as at 2 December 2011 were tendered to the Tribunal. It is apparent from an examination of those photographs that Mr Saliba made some efforts between February and December 2011 to tidy up the property but substantial material referred to in the notice still remained as at December 2011. 10 Section 3.25 of the Local Government Act provides that a local government may give a person who is the owner of land a notice in writing relating to that land requiring the person to do anything specified in the notice that, amongst other things, is prescribed in sch 3.1 div 1 of the Act. Clause 5A of sch 3.1 div 1 of the Act provides that a notice may require that overgrown vegetation, rubbish or disused material, as specified, be removed from land that the local government considers to be untidy. 'Disused material' is defined in cl 5A(2) as including disused motor vehicles, old motor vehicle bodies and old machinery. A person who fails to comply with a notice commits an offence: s 3.25(6) of the Local Government Act.
11 No exception is made for construction materials, however, in some circumstances it may be possible to argue that such materials are not either rubbish or disused material. In the present case it is clear that many of the items referred to in the notice could not be described as construction materials. As regards those that might be so described, including bricks and tiles, Mr Saliba's claim that they were not disused faced the difficulty that by December 2011 they had been at the property for at least ten months and that he had no planning approval for the building works he said he intended to take. Indeed, he had still not obtained such approval as at the date of the hearing of this appeal.
12 Clearly there was ample basis for the Tribunal to conclude that the notice had been properly issued. That was the conclusion reached. Some amendments were made to the notice to reflect that some items had been
(Page 6)removed between the date that the notice was issued and the time that the matter came on for hearing in the Tribunal.
13 Arguments that the materials specified in the notice were not disused and that the property was not untidy only raise questions of fact. Untidiness may not be a precise concept and there may be circumstances in which reasonable people may have different views. Certainly Mr Saliba does not accept that his property is untidy. But that is not a view that would be shared by many people and it was certainly not shared by the respondent. 14 Issues that relate to the weighing of conflicting evidence or the making of factual findings on that evidence are questions of fact not law. A question of law could only arise from the ground of appeal if it was established that the conclusion reached by the Tribunal was so unreasonable that no reasonable decision-maker would make it or if there was a failure to take into account a relevant consideration.
15 Given the evidence before the Tribunal, its conclusion could not be described as unreasonable. As to whether there was a failure to take into account a relevant consideration, Mr Saliba asserts that the Tribunal failed to take into account his evidence. In fact Mr Saliba did not give evidence in the Tribunal proceedings, though he did make oral submissions that were largely to the same effect as those made on the hearing of this appeal.
16 In oral reasons for decision the Tribunal made specific reference to Mr Saliba's submissions. Reference was made to the suggestion that some of the building materials were required for impending building works. Reference was made to his objection to items being described as untidy. Reference was made to him needing an extension of time to take advantage of an annual street collection of household rubbish. It is clear from this that the Tribunal did have regard to Mr Saliba's submissions.
17 The Tribunal reached its decision not because it ignored Mr Saliba's submissions but because, to the extent that they were relevant, it did not accept them. Rather, the Tribunal accepted the evidence submitted by the respondent. In particular the Tribunal said:
In our view there are on the uncontradicted photographs given to the Tribunal and, indeed, on some of the acknowledgements of Mr Saliba himself, sufficient materials to indicate that the premises are relevantly untidy and would warrant the giving of a notice. That is all I really need to say on the facts except to say that in respect of the various descriptions
(Page 7)given by Mr Saliba, to the extent that he has isolated particular items or queried whether items are still on site, he has not produced any evidence to show that the photographic evidence before us is incorrect. As to his argument that separate items taken individually, such as a bucket and a spare tyre would not ordinarily be considered untidy, in the Tribunal's view, taken collectively with the other rubbish on site, you could describe the premises as untidy even if he has a lawful right to have some of those items individually on site. In our view, it is crystal clear that there is sufficient material and such a messy state to warrant the statutory definition of 'untidy',
18 It is not reasonably arguable that any error of law by the Tribunal has occurred. Mr Saliba's arguments amount to nothing more than a disagreement with the outcome in the Tribunal. For these reasons leave to appeal was refused on the hearing of this appeal and the appeal was dismissed.