Warren Gardner and Julie Beaver v ACT Planning and Land Authority (Administrative Review) - [2010] ACAT 64

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

WARREN GARDNER & JULIE BEAVER v ACT PLANNING AND LAND AUTHORITY (Administrative Review) [2010] ACAT 64

AT 31 of 2010 & AT 36 of 2010

Catchwords: ADMINSTRATIVE LAW – striking out a frivolous and vexatious application – obligation of a public authority under the Human Rights Act 2004 – right to fair trial – right to privacy and home – test in R v Fearnside
PLANNING AND LAND DEVELOPMENT – use and enjoyment of land – amenity – controlled activity order – use of residential lease – home business

Legislation: ACT Civil and Administrative Tribunal Act 2008, ss.9 and 32
Human Rights Act 2004, ss.12, 21, 28, 30 and 40B

Land (Planning and Environment) Act 1991 (repealed), ss.255, 256, 259A
Planning and Development Act 2007, ss.6, 234, 247, 353, 355, 358, 363 and 366, and Chapters 11 and 13
Planning and Development Regulation 2008, reg.1.108
ACT Civil and Administrative Procedure Rules 2009 (No 2),
rule 7

Case law:
A & B v Director of Family Services [1997] ACTSC 17
AON Risk Services v ANU [2009] HCA 27; [2009] 258 ALR 14
Ashingdane v United Kingdom (1985) 7 EHRR 528
Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
De Simone v Bevnol Constructions & Developments Pty Ltd
[2009] VSCA 199
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Golder v United Kingdom (1975) 1 EHRR 524
Firestone and Legal Aid Office (ACT) [2007] ACTDT 3
Hakimi v Legal Aid Commission (ACT) 2009] ACATSC 48;
(2009) 3 ACTLR 127
HM Attorney General v Covey [2001] EWCA Civ 254
Jessop v Westpac Banking Corporation [1999] FCA 1646
King v the Honourable Terence Higgins AO and Others
[2010] ACTSC 153
Letts v Commonwealth [1983] 8 FCR 585
Miloslavsky v United Kingdom (1995) 20 EHRR 442
Project Blue Sky v ABA (1998) 194 CLR 355
R v Fearnside (2009) 165 ACTR 22
R v Grayson and Taylor [1997] 1 NZLR 399
R v Hansen [2007] 3 NZLR 1
R (Munjaz) v Mersey Care NHS Trust [2005] UK HL 58;
[2006] 2 AC 148
R v Momcilovic [2010] VSCA 50; [2010] 265 ALR 751
Re Lawrence; Ex parte Goldbar Holdings Pty Ltd
(1994) 11 WAR 549
Re McIntyre & Comcare Australia (1997) 40 8 ALD 437
Re Pickering [2009] FCA 809
Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd [2008] VCAT 2629
Smith v Hobsons Bay CC [2010] VCAT 668
State Electricity Commission v Rabel [1998] 1VR 102
Thomson and ACT Planning and Land Authority
[2009] ACAT 38
Walton v Gardiner (1993) 177 CLR 378
Williams v Spautz [1993] HCA 9; (1993) 112 ALR 191;
(1993) 67 ALJR 388
Lane W B & Young, S, Administrative Law in Australia, 2007
Brennan, Sir Gerard, “The Anatomy of an Administrative Decision” (1980) 9 Sydney Law Review 1, quoted in R Creyke & J McMillan, Control of Government Action, Text, Cases & Commentary, 2^nd ed., (2009), p.184

Tribunal: Professor P. Spender Presidential Member

Date of Orders: 28 September 2010

Date of Reasons for Decision: 28 September 2010

AUSTRALIAN CAPITAL TERRITORY )

CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 31 of 2010
AT 36 of 2010

BETWEEN:

WARREN GARDNER &
JULIE BEAVER

Applicants

AND:
ACT PLANNING & LAND AUTHORITY

Respondent

TRIBUNAL: Professor P. Spender Presidential Member

DATE: 28 September 2010

ORDER

Upon being satisfied that the application for review is frivolous, the Tribunal orders that the application be dismissed.

………………………………..
Linda Crebbin, General President
For Professor Peta Spender
Presidential Member

REASONS FOR DECISION

Warren Gardner and Julie Beaver (“the Applicants”) have sought review of a decision of the ACT Planning and Land Authority as decision-maker ("the Respondent") to issue a controlled activity order dated 8 April 2010 in relation to the premises at Block 13 Section 129 division of Kaleen ("the Subject Premises"). The controlled activity orders were issued to both Mr Gardner and Ms Beaver individually but were in the same terms and shall hereinafter be referred to as “the Controlled Activity Order”. The Applicants are leaseholders of the Subject Premises. The Crown lease of the Subject Premises is registered in the name of the Applicants at Volume 712 Folio 29.The Controlled Activity Order[1] required that the leaseholders comply with the directions outlined in Part 4 of the order within 45 calendar days of being given notice of the order.
[1] T 15 (Tribunal Documents 15)
Part 4 of the Controlled Activity Order stated as follows:

THIS ORDER DIRECTS THE ENTITY OUTLINED IN PART 1 TO
1. Comply with Clause 1 (f) of the lease by ceasing to use the leasehold for the storage, sale or repair of whitegoods or parts of whitegoods;
2. Clean up the leasehold and keep it clean by removing items including, but not limited to, whitegoods, parts of whitegoods, lawn mowers, parts of lawn mowers, motor vehicles, parts of motor vehicles, trailers, parts of trailers, tyres, sheet metal, metal poles, oil drums, bicycles and parts of bicycles; and
3. Not to carry out a development without development approval by ceasing to use the leasehold for a home business that involves the storage, sale or repair of white goods or parts of white goods.

Mr Gardner applied to the Tribunal on 4 June 2010 after a dispute had arisen as to whether the Applicants had complied with the Controlled Activity Order.
Mr Gardner made an application for interim or other orders on 21 June 2010 after a rectification notice was issued by the Respondent on 9 June 2010. By letter dated 25 June 2010 to the second Applicant, Ms Beaver, the Manager of the Utilities, Land and Lease Regulation Unit of the Respondent, Mr Moysey, advised Ms Beaver that the Controlled Activity Order had not been complied with and a number of options were available to the Respondent to enforce the Controlled Activity Order including the making of directions to carry out rectification work which, in some cases may involve authorising a third party to enter onto the land and carry out the work required under the order at the expense of the Applicant. Additionally Mr Moysey’s letter indicated that failure to comply with the Controlled Activity Order is a breach of Chapter 11 of the Planning and Development Act 2007 (“the Planning Act”) and therefore may constitute grounds for the termination of the Crown lease. By this stage Mr Gardner had made an application to the ACT Civil & Administrative Tribunal (“ACAT”) for review of a decision to make the Controlled Activity Order and Ms Beaver made a similar application to ACAT on 1 July 2010.
At a directions hearing held on 30 June 2010, Mr Gardner requested that the Tribunal exercise its discretion under rule 7 of the ACT Civil and Administrative Tribunal Procedure Rules ("the ACAT Rules") to extend time for lodgement of the application to review the decision in ACAT. The Respondent opposed the extension of time under r 7, however the Tribunal found that there were reasonable grounds for making such an order and extended the time for lodgement of the application for review. A further order was made at that hearing which restrained the Respondent from taking any further action under section 361 of the Planning Act for contravention of the Controlled Activity Order until further order.
At the directions hearing held on 30 June 2010, the Respondent sought an order that the application be dismissed as frivolous and vexatious pursuant to section 32 of the ACAT Act and the Tribunal made a timetable for facts and contentions by both parties in preparation for an interlocutory hearing held on 16 July 2010.
During its deliberations, the Tribunal concluded that the application to dismiss the proceedings as frivolous and vexatious raised questions about the operation of the Human Rights Act 2004 (“the Human Rights Act”) and invited submissions from the parties on this aspect. The parties duly provided submissions during August 2010.

Background

The Applicants became the lessees of the Subject Premises pursuant to a certificate of title for the land granted to them in December 1988. In February 1994, a complaint was made to the Department of Environment, Land and Planning (“DELP”) in relation to the operation of a mechanical business from the land. The Applicants were given 21 days to tidy up the block. No further action was taken after an inspection of the site by DELP officers on 29 March 1994.
In September 1996, the Registrar of the Land and Planning Appeals Board considered an application which included a ground that the site had become untidy but decided not to issue an order under section 256 of the Land (Planning and Environment) Act 1991 (repealed) (“the Land Act”)[2] and Mr Gardner undertook to make a substantial effort to tidy up the site.[3]
[2] This provision provides for an order to be made in relation to a controlled activity.
[3] T 407
The Applicants were served with an order under section 256 of the Land Act in March 1999.[4] Mr Gardner applied to the Administrative Appeals Tribunal (“the AAT”) for a review of the decision.[5] The AAT had affirmed the decision in matter AT 99/44.
[4] T 389 to T 394
[5] T 388
In February 2002, the Department of Urban Services, Planning and Land Management (“PALM”) wrote to the Applicants after receiving a further complaint, requesting that they tidy the land.[6] Following that, in March 2002, PALM applied for an order under section 256 of the Land Act. Further applications for orders were made on 26 March 2002, 2 April 2003 and

7 May 2003.[7]
[6] T 382
[7] T 380, T 373, T 371

On 28 May 2003, the delegate for the Minister of Urban Services issued an order under section 256 of the Land Act against the Applicants.[8]   In June 2003,

Mr Gardner applied to the AAT for a review of the decision.[9] A consent decision was made by the AAT on 8 August 2003 in matter AT 03/60.[10]
[8]   T 364 to T 368
[9]   T 362
[10] T 349 to T 350
In April 2004 and February 2005, rectification notices were issued by the Respondent under section 259A of the Land Act for failing to comply with the consent decision.[11]
[11] T 338, T 333
By letter of October 2005 (which also constituted a proposed order under section 255 of the Land Act), the Respondent wrote to the Applicants advising that it had received allegations regarding their failure to keep the block clean and had undertaken inspections to confirm the allegations.[12] An order under section 256 of the Land Act against the Applicants was issued on 28 October 2005.[13]In November 2005, the Applicants applied to the AAT for a review of the decision.[14] The AAT made a consent decision on 18 January 2006.[15]
[12] T 328 to T 329
[13] T 324 to T 327
[14] T 322
[15] T 317
On 15 May 2006, an infringement notice was issued under the Magistrates Court Act 1930 to the Applicants for contravening an order.[16] On the same date, the Respondent issued a rectification notice to the Applicants for failing to comply with the order.[17] On 24 May 2006, a Senior Inspector of the Respondent wrote to the Applicants advising that the order had been complied with.[18]
[16] T 309 to T 310
[17] T 307
[18] T 306
After issuing a proposed order to the Applicants in January 2007, the Respondent issued an order under section 256 of the Land Act against them on 27 February 2007.[19] The Applicants sought a review of the decision by the AAT which, on 13 June 2007, made a decision to vary the directions in the 27 February 2007 order.[20] The Respondent argued that this order gave rise to an ongoing order.
[19] T 302, T 297 to T 301
[20] T 296, T 288 to T 290
This order has not been complied with, as demonstrated by the rectification notices issued to the Applicants in 2008. In February 2008, a rectification notice was issued under section 259A of the Land Act[21]and in August and December 2008, the Respondent issued rectification notices to the Applicants under section 366 of the Planning and Development Act 2007 (the Planning Act).[22]
[21] T 284
[22] T 282, T 276
A show cause notice was issued to Mr Gardner and Ms Beaver in March 2010 under section 353 of the Planning Act[23]and on 8 April 2010, the Respondent issued the Controlled Activity Order.

The Tribunal's Jurisdiction

[23] T 173 to T 175, T 176 to T 178

The Tribunal's jurisdiction arises pursuant to s 9 of the ACT Civil & Administrative Tribunal Act 2008 (“the ACAT Act”) which provides that a person may apply to the Tribunal if an authorising law provides that an application may be made. The relevant authorising law is the Planning Act, which in Chapter 13 and Schedule 1 states the reviewable decisions which are subject to ACAT review and the entities who are permitted to make an application following that reviewable decision. A decision by the Respondent to make a controlled activity order under s 355 is a reviewable decision in column 1 item 43 of Schedule 1 and both Applicants are eligible entities under column 4 Schedule 1 as both Applicants are persons against whom the controlled activity order is directed as well as being lessees of the land to which the order relates.
Section 234 of the Planning Act defines “residential lease” as “a lease granted for residential purposes only”. Section 247 provides that leased land must not be used for a purpose other than a purpose authorised by the lease.

Subsection 247(2) states that “if the lease is a residential lease, the land may also be used for home business”. Under this subsection, the following note appears:
“While the use of a residential lease for a home business is authorised, the use of the land for a home business is not exempt from requiring development approval unless the use is an exempt development (see div 7.2.6).”

21.Subsection 247(3) states that “home business, carried on land subject to a residential lease, means a profession, trade or other occupation carried on by a resident of the land”.
22.Part 11.3 of the Planning Act provides for controlled activity orders. The orders may be issued on the Respondent’s initiative or on an application being made by a person. The Controlled Activity Order was issued to the Applicants on the Respondent’s initiative, though the Tribunal Documents indicate that the Respondent had received several letters and other communications from neighbours complaining about the condition of the Subject Premises.

Regulation 1.108 of the Planning and Development Regulation 2008 (ACT) ("the Planning Regulation") allows a lessee to conduct a home business on a residential lease without development approval provided that certain conditions are met including the requirement under r 1.108 (1)(c) that all goods and materials relating to the business (other than goods or materials kept on another lease) must be kept –
(i) in buildings or structures that are lawfully on the lease; and
(ii) in a way that the goods and materials cannot be seen from outside the lease.
Regulation 1.108(1)(d) also requires that the area of the lease used for the business (including storage) is not to be more than 40 m².
Section 363 of the Planning Act states that a controlled activity order operates until it is revoked or ends in accordance with the order. Section 363(2) of the Planning Act allows a person who is bound by a controlled activity order to apply in writing to the Respondent for revocation of the order. Pursuant to section 363(4) of the Planning Act, the Respondent may revoke the controlled activity order if satisfied, on reasonable grounds, that the order is no longer necessary or appropriate. A decision under s 363(4) to refuse to revoke a controlled activity order is a reviewable decision which is subject to ACAT review in item 44, column 1 in Schedule 1 of the Planning Act. The Applicants are eligible entities for such an application pursuant to column 4 as lessees of the land to which the order relates.
At the interlocutory hearing on 16 July 2010 the Tribunal attended the Subject Premises and inspected the public area at the front of the Subject Premises as well as the side and back yards. The Tribunal noted the presence of approximately 10 to 20 fridges in the driveway of the Subject Premises in front of the garage, described by the first Applicant, Mr Gardner, as "the work area" and at the rear of the house there was a body of material that was up to 2 metres deep spread over the entirety of the area adjacent to the house and garage, described by Mr Gardner as "the storage area". The storage area contained a body of material which Mr Gardner compared to an auto wrecker’s premises, though the depth and the thickness of the piles of material made it difficult to classify what type of material was contained there. The material appeared to be predominantly white goods however there was material from a range of sources, some identifiable some unidentifiable. During the inspection of the Subject Premises by the Tribunal, Mr Gardner conceded that the storage area needed to be cleaned up and further conceded that the combined area of the storage and work areas exceeded 40 m² in so far as these areas might fall within r 1.108 (1)(d) of the Planning Regulation.

The Applicants’ Contentions

The Applicants’ primary argument concerned Direction number 2 of Part 4 of the Controlled Activity Order. The Applicants argued that Direction 2 was drafted too widely and in particular the scope of the direction for the Applicants “to clean up the leasehold and keep it clean by removing items including but not limited to” (emphasis added) imposed an unreasonable restraint upon their privacy and activities. The Applicants raised questions as to the process that might be involved in determining whether the order had been complied with and how the order might therefore be revoked. The Applicants also argued that they could not be said to be operating a business from the Subject Premises, therefore they disagreed with the premise upon which Directions 1 and 3 of Part 4 of the Controlled Activity Order were based.

The Respondent's Contentions

Mr Walker of counsel, on behalf of the Respondent, argued that the Tribunal should dismiss the applications as frivolous and vexatious pursuant to s 32 of the ACAT Act. It was submitted that the application for review had no reasonable prospect of success since it was clear that the order was appropriately framed and the Applicants' challenge of the order was without merit. In interpreting the content of the order, particularly Direction 2 of Part 4, it was necessary for the Tribunal to consider s 358 of the Planning Act, the relevant portions of which state as follows:

358 Content of controlled activity orders
(1) A controlled activity order must state—
(a) that it is a controlled activity order under this Act made by the planning and land authority; and
(b) each person to whom the order is directed; and
(c) the terms of the order and the premises in relation to which the order applies; and
(d) the grounds on which the order is made; and
(e) when the order takes effect; and
(f) for an order other than an ongoing controlled activity order—if appropriate—
(i) the period for compliance with the order; and
(ii) when the order ends (including, for example, on the happening of an event stated in the order); …

(2) A controlled activity order must also contain a statement to the effect that the order operates until it is revoked or ends in accordance with the order.
(3) A controlled activity order may direct anyone to whom it is directed to do 1 or more of the following:
…

(l) to clean up a leasehold and keep it clean…

The Respondent argued that it was necessary for Direction 2 Part 4 to be drafted to include unspecified items because the overarching responsibility of the leaseholder under the Planning Act is to keep the leasehold clean. Due to the situation that had arisen at the leasehold, it was impossible to specify with any particularity the items which would need to be removed in order to achieve a clean up of the leasehold and therefore Direction 4 needed to specify particular items but also contemplate further items which would necessarily be required to be removed in order for the leaseholders to comply with their obligations under the Planning Act. In construing the terms of the Controlled Activity Order, it was necessary for the Tribunal to consider the overarching legislative scheme in Chapter 11 of the Planning Act.

Consideration of the Issues

In considering an application to dismiss an application for review under s 32 of the ACAT Act, the Tribunal must be satisfied that the application for review is frivolous or vexatious. It is clear that the power to dismiss an application for review on these grounds must be exercised with considerable caution.[24]
[24] Firestone and Legal Aid Office (ACT) [2007] ACTDT 3 at [88]
There have been various standards stated in the case law as to what test applies when proceedings are alleged to be frivolous or vexatious. For example that the proceedings are "foredoomed to fail",[25] where the claim is without substance, groundless or fanciful,[26] clearly untenable,[27] baseless[28] or where the claim discloses no cause of action or no justiciable legal controversy.[29] In Re McIntyre & Comcare Australia[30] the Commonwealth Administrative Appeals Tribunal noted that a power expressed in similar terms to s 32 of the ACAT Act was granted to the Tribunal for the purpose of saving resources. The High Court opined in AON Risk Services v ANU[31]that court and tribunal resources are a relevant consideration for case management decisions, and the present Tribunal considers that such resources may be a relevant consideration in applying

section 32 of the ACAT Act.
[25] Walton v Gardiner (1993) 177 CLR 378 at 393
[26] Re Pickering [2009] FCA 809 at [33].
[27] State Electricity Commission v Rabel [1998] 1VR 102
[28] A & B v Director of Family Services [1997] ACTSC 17
[29] Jessop v Westpac Banking Corporation [1999] FCA 1646 at [7]
[30] (1997) 40 8 ALD 437
[31] [2009] HCA 27; [2009] 258 ALR 14
The Respondent conceded that the application for review could not be regarded as vexatious in the sense of being brought for an improper purpose.[32] However the words "frivolous" and "vexatious" tend to have an overlapping operation in the case law and singularly and in combination have given rise to considerable judicial attention.[33] Whilst the Tribunal finds that the Applicants have no improper motives in bringing the current application for review, the history of the applications to the Tribunal in combination with a lack of reasonable grounds might establish that the application for review is frivolous or vexatious[34] insofar as these terms overlap to a certain extent.[35]
[32] Williams v Spautz 1993] HCA 9; (1993) 112 ALR 191;
[33] King v the Honourable Terence Higgins AO and Others [2010] ACTSC 153 at [37]
[34] Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
[35] King v the Honourable Terence Higgins AO and Others [2010] ACTSC 153 at [37]
Even though an application to strike out proceedings as frivolous or vexatious is an interlocutory proceeding which may not lead to full ventilation of relevant issues and evidence, the exercise of the power to dismiss the proceedings as frivolous or vexatious, is not, as stated by Dixon J (as he then was), "reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim". His Honour continued that "[a]rgument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."[36]
[36] Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91
Upon consideration of the evidence in this case, in particular the Tribunal Documents, the oral testimonies of Mr Ben Green of the Respondent and Mr Gardner and a view of the Subject Premises, the Tribunal concludes that the application for review is clearly untenable. The Applicants’ arguments that a business was not being conducted at the Subject Premises fell away when Mr Gardner gave frank evidence about the operation of a recycling business at the Subject Premises. The Tribunal notes that Mr Gardner assists local charities and other community organisations in collecting goods for recycling and provides opportunities for low income earners to obtain recycled and repaired goods. However, because the goods in many cases are on-sold, an argument that a business is not conducted at the premises is clearly untenable. Although the exemption in r 1.108 of the Planning Regulation would allow the Applicants to conduct a home business at the premises, it was conceded by the Applicants that the material contained within the work area and storage area was in excess of 40 m², therefore the area of the lease used for the business (including storage) is more than the area permitted under r 1.108(1)(d). If the area in which the business was conducted was reduced to an area less than 40 m², the home business may be conducted from the Subject Premises provided the other requirements under r 1.108 are satisfied.
The question arose during the interlocutory hearing as to whether the goods and materials relating to the business are kept in "buildings or structures that are lawfully on the lease" under r 1.108 (1) (c). The Applicants contended that "structures" in that provision means the fence on the leasehold which was constructed pursuant to a development approval. It is not necessary for the Tribunal to decide this issue, however the Tribunal notes that the word "structure" is defined in the Dictionary of the Planning Act to include a fence.
The Applicants further argued that Direction 2 of Part 4 of the Controlled Activity Orders was uncertain, so they were unclear about what was required to comply with the Controlled Activity Order. A notice must specify with sufficient certainty what the recipient has to do to comply with it[37] and a notice which requires the recipient to clean up "to the satisfaction of the inspector" or "which may be approved by the Director" maybe invalid due to a lack of specificity.[38] In each case it is a matter of applying the particular statutory provisions to the circumstances at hand and interpreting and applying the Planning Act and Planning Regulation to give effect to harmonious goals.[39] The object of the Planning Act is set out in section 6 which states that the object of the Act is to provide a planning and land system that contributes to the orderly and sustainable development of the ACT consistent with the social and environmental and economic aspirations of the people of the ACT, hence the Act contemplates, albeit at a broad level of generality, the interests of the ACT community. The purpose of Chapter 11 of the Planning Act is instrumental and is designed to achieve compliance with other provisions of the Planning Act which contribute to the orderly and sustainable development of the ACT.
[37] Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
[38] Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549
[39] Project Blue Sky v ABA (1998) 194 CLR 355 at [70].
In practical terms, the array of materials that were on the Subject Premises around the time of the issue of the Controlled Activity Order (indicated by the photographic evidence in the Tribunal Documents) and continuing up to the date of the interlocutory hearing was so diverse that it would be impossible for the Respondent to specify in exact terms what material needed to be removed as part of the clean up. Such items include kitchen sinks, washing machine bowls, road signs, microwaves and baskets. The Applicants conceded that the material in the storage area needed to be cleaned up and this material consisted of several layers of identifiable and unidentifiable objects which clearly needed to be removed in order to attain even a minimum level of cleanliness.
The relevant words in section 358 – "clean" and "clean up" – are not defined in the Planning Act. Most Australian cases which deal with clean-up orders concern remediation work imposed after the contamination of sites by pollutants. This is different to the current situation. The Oxford English dictionary defines "clean" to include "free from any defiling or deteriorating ingredient" and "free from dirt or filth; unsoiled or unstained: the proper opposite of dirty or foul." In the Tribunal's view, the meaning of "clean" in the context of the system of land use in the ACT as regulated by the Planning Act is "free from any defiling or deteriorating ingredient" or in the vernacular, "not dirty". Applying the meanings of "clean" to citizens’ residential premises, particularly to their yard, requires some judgement but it is not entirely open-ended.
Importantly the Applicants may exercise their rights under section 363 of the Planning Act to seek a revocation of the Controlled Activity Order when they consider that the premises are clean and if the Respondent refuses to revoke the order, this decision is reviewable by ACAT.
The Tribunal accordingly finds that the application for review is frivolous and vexatious because it is foredoomed to fail. [40]

Consideration of the Human Rights Act

[40] Walton v Gardiner (1993) 177 CLR 378 at 393

In reaching the conclusion that the Applicants’ claim is frivolous and vexatious, the Tribunal notes that the Applicants will not have access to a full hearing on the merits and this raises questions as to whether the Applicants’ right to a fair hearing under section 21 of the Human Rights Act has been engaged. Section 12 of the Human Rights Act may also be relevant because the orders of the Tribunal may interfere with the Applicants’ right not to have their home interfered with unlawfully or arbitrarily.
There are two bases which found the obligation of the Tribunal to consider the Human Rights Act. The first basis is the interpretive obligation under section 30 of the Human Rights Act. The second basis is section 40B of the Human Rights Act, which states that it is unlawful for a public authority in making a decision to fail to give proper consideration to a relevant human right.
As regards the first basis, section 30 of the Human Rights Act states as follows:
Interpretations of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
The Court of Appeal in R v Fearnside[41] (‘Fearnside’) and Refshauge J in Hakimi v Legal Aid Commission (ACT)[42] have outlined the proper approach to interpretation in this context. Besanko J in Fearnside held that there is a three stage process that must be adopted in discerning the human rights issues. This process was summarised by the Tribunal as follows in Thomson and ACT Planning and Land Authority[43]
First, it is necessary to consider whether [the legislation] “enlivens” a human right. Secondly, if, but only if, the answer to the first question is yes, it is necessary to consider whether [the legislation] contains a limitation which is reasonable within s 28. Thirdly, if, but only if, the answer to the first question is yes and the answer to the second question is no, it is necessary to consider and apply the interpretative principle in s 30.
[41] (2009) 165 ACTR 22
[42] [2009] ACATSC 48; (2009) 3 ACTLR 127
[43] [2009] ACAT 38 at [38]
It is to be noted that Besanko J considered that the interpretive principle in

section 30 of the Human Rights Act is to be applied at the final step in the process. What approach to interpretation should be followed when considering step 1 i.e. whether the legislation has enlivened a human right? The Victorian Court of Appeal in R v Momcilovic considered that the meaning of a legislative provision is to be ascertained by applying the Victorian equivalent of section 30 of the Human Rights Act in conjunction with the common law principles of statutory interpretation and the Victorian equivalent of Legislation Act 2001 (ACT).[44]As stated above, Besanko J in Fearnside held that the interpretive principle applies at step 3. However, his Honour approved the general approach taken by the majority in the Supreme Court of New Zealand in R v Hansen[45] where it was held that steps 1 and 2 required the decision maker to ascertain Parliament's intended meaning and then to decide whether that meaning is apparently inconsistent with a relevant right or freedom.
[44] See, Interpretation of Legislation Act 1984 (Vic); [2010] VSCA 50 at [35]
[2010] 265 ALR 751 at [35]
[45] [2007] 3 NZLR 1 at [60], [92], and [192]
The Tribunal will follow R v Fearnside[46] and adopt the approach taken in Thomson and ACT Planning and Land Authority[47] by ascertaining the ordinary meaning of the provisions of the ACAT Act and the Planning Act using the common law principles of statutory interpretation and the Legislation Act 2001 and defer consideration of section 30 of the Human Rights Act until step 3 is reached.
[46] (2009) 165 ACTR 22
[47] [2009] ACAT 38 at [43]-[46]
As regards the second basis which establishes the obligation of the Tribunal to consider the Human Rights Act, the Tribunal in Thomson and ACT Planning and Land Authority[48] explained how ACAT operated as a public authority under section 40 of the Human Rights Act when conducting merits review. The relevant reasoning of the tribunal in that case is set out below:
[48] [2009] ACAT 38 at [34]-[3]5
[34] Pursuant to amendments to the Human Rights Act effective 1 January 2009 public authorities must act consistently with human rights. Section 40B states:
Public authorities must act consistently with human rights
(1) It is unlawful for a public authority—
(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper
consideration to a relevant human right.

[35] ACAT is a public authority because it is a ‘territory authority’ within s 40(1)(b) of the Human Rights Act and is defined as a ‘territory authority’ in the Dictionary of the ... Legislation Act . Although ACAT falls within the definition of ‘court’ in the Human Rights Act, in this case it is acting in an administrative capacity by ‘standing in the shoes’ of the Respondent and therefore falls within the proviso in s 40(2)(b) of the Human Rights Act. ACAT acts in an administrative capacity by exercising the scope the Respondent’s functions upon an application for review being filed with ACAT. In addition to the function that ACAT exercises when standing in the shoes of the Respondent, it also acts as a public authority in its own right when acting in an administrative capacity.
Although ACAT acts as a public authority when exercising its powers under section 68 of the ACAT Act to conduct merits review by standing in the shoes of the decision-maker,[49] there is doubt as to whether the ACAT acts as a public authority when it exercises its power under section 32 of the ACAT Act to strike out an application as frivolous or vexatious. On one view, the Tribunal is exercising judicial or quasi-judicial power[50] because, for example, the Tribunal receives evidence and submissions by parties “that were not before the original decision-maker” and operates “within a framework of quasi-judicial powers and obligations of its own”.[51] When considering the nature of tribunals’ powers generally, Sir Gerard Brennan stated that, in order to perform their functions, tribunals are armed with different powers from those possessed by the primary decision-maker and those powers “are the powers ordinarily vested in courts, but not ordinarily vested in administrators”.[52]
[49] Roberts & Ors and ACT Planning & Land Authority [2009] ACAT 10 at [18]
[50] Letts v Commonwealth [1983] 8 FCR 585; Lane W B & Young, S, Administrative Law in Australia (2007) at [2.130]
[51] Lane W B & Young, S, Administrative Law in Australia (Law Book Co, 2007 at [3.35]
[52] Brennan, Sir Gerard, “The Anatomy of an Administrative Decision” (1980) 9 Sydney Law Review 1, quoted in R Creyke & J McMillan, Control of Government Action, Text, Cases & Commentary, 2^nd ed, (2009), p.184
One such power is the power contained in section 32 of the ACAT Act.
On this view, the Tribunal is not "acting in an administrative capacity" under section 40 of the Human Rights Act and therefore not constrained by section 40B of the same act. This was the approach taken by the Vice President of the Victorian Civil and Administrative Tribunal (VCAT) when refusing to grant a stay of a counterclaim in Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd, [53] though the power in that case was exercised during proceedings for breach of contract. The approach was upheld by the Victorian Court of Appeal in Simone vBevnol Constructions & Developments Pty Ltd.[54]
[53] [2008] VCAT 2629
[54] [2009] VSCA 199
A contrary view is that a tribunal acts in an administrative capacity at all stages when considering an application for merits review. For example in Re Rayson and Repatriation Commission, Forgie DP stated that the tribunal "is a body that does not exercise judicial power"[55] though the Deputy President in that case was discussing the powers of the federal Administrative Appeals Tribunal which operates in a different constitutional context to state and territory tribunals such as ACAT and VCAT.
[55] [2009] AATA 231, (2009) 109 ALD 168 at [66]
Until this issue is resolved by the Supreme Court, the Tribunal will adopt a cautious approach and give proper consideration to relevant human rights on the basis that its obligation to do so arises from either the interpretive principle under section 30 or the public authority obligation section 40B of the Human Rights Act, or both.

The Right to Fair Trial

The right to fair trial or fair hearing is protected in section 21(1) of the Human Rights Act as follows:
21 Fair trial
Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
The Respondent submits that the right to fair trial generally encompasses a right of access to a fair and impartial tribunal and, where relevant, to a court possessing full jurisdiction. A right of access to court is not absolute. It may be subject to a number of restrictions provided they do not impede the essence of the right of access. The restrictions must have a legitimate aim and the means used to achieve the restriction must be reasonably proportionate to the aim sought to be achieved. The Respondent cited the following cases in support of this proposition: Golder v United Kingdom,[56] Ashingdane v United Kingdom[57] and Miloslavsky v United Kingdom (“Miloslavsky”).[58] The Respondent notes that “the present application is frivolous or vexatious, not that the Applicant is or should be dealt with as a frivolous or vexatious litigant”.[59] On the Respondent's argument, even if the right to fair trial is engaged by an exercise of power under section 32 of the ACAT Act, “the ordinary or orthodox principles on which it is exercised, represent reasonable limits for the purposes of section 28 of the HRA”.[60]
[56] (1975) 1 EHRR 524 at [36],[38] – [39]
[57] (1985) 7 EHRR 5 to 8 at [57]
[58] (1995) 20 EHRR 442 at [59]
[59] Respondent’s submission at [6] and [16]
[60] Respondent’ submission at [18]
The Applicants submit that a fair trial is an opportunity “to present evidence or views in support of one’s case. It must also be an opportunity to test or rebut any evidence or statement offered by the Respondent”.[61]
[61] Applicants’ submission, p.1, item 1.
Although the right of access to courts and tribunals is secured by section 21 of the Human Rights Act, the right of access is not absolute.[62] The right may be subject to limitations in the form of regulation by the State. However, in considering whether the right under section 21 is enlivened or breached, the decision maker must be satisfied, firstly, that the limitation does not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Secondly, any restriction must pursue a legitimate claim and there must be reasonably proportionality between the means employed and the aim sought to be achieved.[63] The European Court of Human Rights found in Miloslavsky that an order for security for costs of an appeal from a damages award made against a defendant in a libel claim pursued a legitimate aim, namely to protect the plaintiff from being faced with an irrecoverable bill for legal costs if the defendant were unsuccessful in the appeal. Regard was also had to the lack of prospects of success of the defendant’s appeal which indicated that the security for costs procedure had been imposed in the interests of fair administration of justice.[64] By way of further example, the England and Wales Court of Appeal in HM Attorney General v Covey,[65]when declaring an Applicant to be vexatious, said that compliance with the right to fair trial "does not involve an unlimited and uncontrolled opportunity to address the court”.[66]
[62] Golder v United Kingdom (1975) 1 EHRR 524 at [38]
[63] Miloslavsky v United Kingdom (1995) 20 EHRR 442 at [59]
[64] Miloslavsky v United Kingdom at [61]
[65] [2001] EWCA Civ 254
[66] [2001] EWCA Civ 254 at [47]

Similarly, section 32 of the ACAT Act pursues a legitimate aim, namely to discourage litigants from bringing claims which have no merit and protecting the other party from being required to compromise or being forced to bear the costs of a full hearing into an unmeritorious claim.
Because this is a claim for merits review, a relevant further consideration is whether the composite process of administrative decision making in this situation is fair. In this respect, the Tribunal follows the decision in Thomson & ACT Planning and Land Authority[67] and finds that the Applicants have had access to an interlocutory hearing which included fact-finding and importantly have a right to seek merits review of any subsequent decisions made by the Respondent to refuse a revocation of the Controlled Activity Order if the Applicants have applied for the revocation under section 363 of the Planning Act.
[67] [2009] ACAT 38
The Tribunal therefore finds, in accordance with the step 1 of the Fearnside test, that although an ordinary interpretation of the Planning Act and the ACAT Act enlivens section 21 of the Human Rights Act, there is no significant interference with the right to a fair hearing. Consequently, it is not necessary for the Tribunal to consider steps 2 and 3 of the Fearnside test.

The right to privacy and home

Section 12(1) of the Human Rights Act states as follows:
Everyone has the right –
(a) not to have his or her privacy, family, home or correspondence
interfered with unlawfully or arbitrarily;
If the Tribunal makes an order which strikes out the application for review as frivolous or vexatious, the Controlled Activity Order will operate. The Applicants claim that the order is a disproportionate intrusion into their privacy and home.[68]
[68] Applicant's submission
Section 12 of the Human Rights Act is based on Article 17 of the International Covenant on Civil and Political Rights. Therefore, in accordance with section 31 of the Human Rights Act, the jurisprudence of the ICCPR may be taken into account. According to the United Nations Human Rights Committee (UNHRC) the meaning of "home" is "the place where a person resides".[69] The Respondent acknowledged in submissions that what constitutes a "home" for the purposes of section 12(a) of the Human Rights Act is an autonomous concept which depends not on classification in law but on the factual circumstances and is a concept which focuses primarily on the existence of sufficient and continuous links with the premises in question.[70]
[69] UNHRC, General Comment Number 16, 32nd session, 1988, [5], cited by B Swannie,
[70] Respondent's submission, referring to the following cases -- Buckley v United Kingdom
The right to home and privacy is not unqualified, rather the interference must not be unlawful or arbitrary. According to the UNHRC, "unlawful" means "no interference can take place except in cases in envisaged by the law".[71] As regards arbitrariness, the UNHRC has stated that it is a concept that is intended to:
guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.[72]
[71] UNHRC, General Comment Number 16, 32nd session, 1988, [3], cited by B Swannie,
[72] UNHRC, General Comment Number 16, 32nd session, 1988, [4], cited by B Swannie,
On the authority of R (Munjaz) v Mersey Care NHS Trust (Mersey Care), a decision will not be random or arbitrary where it is, "governed by clear pre-existing rules where the circumstances and procedures adopted are predictable and foreseeable to those to whom they are applied".[73] It has been held that a regulatory discretion which results in some interference to the right of privacy will not be arbitrary when it is considered against an appropriate objective, standard and decision guidelines that are responsive to the particular site and the particular decision.[74]
[73] R (Munjaz) v Mersey Care NHS Trust [2005] UK HL 58; [2006] 2 AC 148 at
[74] Smith v Hobsons Bay CC [2010] VCAT 668 at [17]
The Respondent submitted that privacy interests will be most affected in relation to the ‘home’ or residence. Beyond this domain, reasonable expectations, and the scope of protected interests will vary according to the nature of the place and the conduct involved”[75]and cited the rule in R v Grayson and Taylor[76]which states that:
a.     reasonable expectations of privacy are higher for the home than for the surrounding land;
b.    for land not used for residential purposes; and
c.     the nature of the activities carried on may affect reasonable expectations of privacy.
[75] Respondent’s submission at [22]
[76] [1997] 1 NZLR 399
The Applicants do not necessarily disagree with this proposition. However they submit that the orders include the leasehold as a single area while ‘harm’ to privacy should be assessed at different levels of access areas, namely,
a. Front yard open to public
b. Front courtyard only accessed by invitation
c. Backyard only accessed by homeowner.
In deciding whether the Controlled Activity Order is an interference with the Applicants’ right to home or privacy which is unlawful or arbitrary, the Tribunal must consider the framework of obligations under the provisions of the Planning Act that are set out above. In particular, section 353 of the Planning Act empowers the Respondent to issue a controlled activity order where a controlled activity has been conducted on leasehold premises. Before issuing the order, the Respondent must give a show cause notice to the addressee and must consider the reasons given in response to the show cause notice under section 355 of the Planning Act before deciding whether to make the controlled activity order. Therefore, the regime is "governed by clear pre-existing rules where the circumstances and procedures adopted are predictable and foreseeable to those to whom they are applied" on the Mersey Care test.
However, an additional consideration under the UNHRC test is that the interference must be reasonable in the particular circumstances. The power to issue a controlled activity order must balance the wider social, environmental and economic interests of the community with the rights of the person to whom the order is issued. The Tribunal Documents demonstrate that the Respondent acted after receiving a number of complaints from neighbours and residents in the surrounding area and issued the orders after repeated inspections of the premises and notices. [77]
[77] Respondent's submission at [26]
The Tribunal notes the submissions made by the Applicants but considers that although there is some interference with their rights to privacy and home, particularly as regards the operation of the order in their backyard, the interference is not unlawful or arbitrary. Consequently, in accordance with step 1 of the Fearnside test set out above, the Tribunal finds that the human rights protected by section 12(1) of the Human Rights Act are not enlivened in this case. Consequently, it is not necessary for the Tribunal to consider steps 2 and 3 of the Fearnside test.

………………………………..
Professor Peta Spender

Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	AT 10/31	AT 10/36
PARTIES, APPLICANT:	WARREN GARDNER	JULIE BEAVER
PARTIES, RESPONDENT:	ACT PLANNING & LAND AUTHORITY	ACT PLANNING & LAND AUTHORITY
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	MR WALKER
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT	ACT GOVERNMENT SOLICITOR	ACT GOVERNMENT SOLICITOR
TRIBUNAL MEMBERS:	PROFESSOR P SPENDER
DATES OF HEARING:	16 JULY 2010
PLACE OF HEARING:	CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS:

(1993) 67 ALJR 388

"The Right to Home under the Victorian Charter" (2010) 35 Alternative Law Journal 83
at 84

(1996) 23 EHRR 101 at [63]; Harrow LPC v Qazi [2004] 1 AC 983 at
[9] to [10]; Director of Housing v Sudi [2010] VCAT 328 at [32]

"The Right to Home under the Victorian Charter" (2010) 35 Alternative Law Journal 83
at 85

[34] and [92]