Smith v Milmerran Shire Council
[2005] QDC 372
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Smith v Milmerran Shire Council[2005] QDC 372
- Add to List
Smith v Milmerran Shire Council[2005] QDC 372
Smith v Milmerran Shire Council[2005] QDC 372
[2005] QDC 372
DISTRICT COURT
APPELLANT JURISDICTION
JUDGE ROBIN QC
No BD1359 of 2005
CHRISTOPHER LAWRENCE SMITHApplicant/Appellant
and
MILMERRAN SHIRE COUNCILRespondent
BRISBANE
DATE 07/11/2005
ORDER
CATCHWORDS: | Appeal to District Court under s 222 of the Justices Act 1886 against convictions by Magistrate - offences against Integrated Planning Act 1997 of failing to comply with enforcement notices requiring appellant to apply for development permits in respect of two houses already constructed - appellant contended that the Planning Act had no application, that the rights of a fee simple owner of land justified the construction without any approval or permit being obtained - appeal dismissed - respondent refused indemnity costs. |
HIS HONOUR: Mr Smith has argued his own appeal under s 222 of the Justices Act 1886 against convictions entered by a Magistrate at Pittsworth on the 16th of March this year in respect of two offences under section 4.3.15 of the Integrated Planning Act 1997. The Magistrate found that Mr Smith had failed to comply with enforcement notices issued under section 4.3.13(1)(f) requiring him to apply for a development permit to regularise the construction of two houses on a property which I think is 300 acres or so in the Shire of Milmerran. The land apparently belongs to Mr McTavish. Everything that Mr Smith has done there has been with Mr McTavish's approval; he told the Court he built one of the houses for himself, the other for McTavish.
The buildings exist; as the planning authority, the Council has taken exception to that because no application for any permit was ever made. The original tack adopted by the Council involved proceedings in the Planning and Environment Court premised on the buildings being temporary. That was unsuccessful, the Court of Appeal determining, in Appeal 610 of 2004 Milmerran Shire Council v. Christopher Lawrence Smith, 8th of March 2004, that whether the structures were temporary ones, erected without a temporary accommodation permit contrary to requirement of the shire's planning scheme, or permanent structures, depended on the intention of those who erected them. See page 8 of the Court of Appeal's reasons. The decision is said to be reported at 133 LGERA 144.
The Council adopted a new approach accepting the structures as permanent. So far as the Integrated Planning Act is concerned, it seems clear that they represent "assessable development" within the definition in schedule 10.
That definition refers one to schedule 8. Table 1 in part 1 lists as "assessable development" building work assessable under the Standard Building Regulation, with presently irrelevant exceptions.
The last provision of the Integrated Planning Act to which reference should be made, section 4.3.1, provides that a person must not start assessable development unless there is an effective development permit for it.
It would, one assumes, have been a relatively simple matter for Mr Smith to make application for permits, as the Act required, and as the Council's enforcement notices required. The Council's selected mode of proceeding indicates that there were reasonable prospects of applications for the development permit or permits succeeding.
Mr Smith chose to ignore the enforcement notices, contending that the Council lacked authority to issue them, or to control what was done on the land at all.
He relies, in part, on religious principles, and in part on well established common law principles, and real property law principles in support of his contention. He has not dwelt on it much in this appeal, but to an extent, he tells the Court he has made the choice to withdraw from ordinary civil society, establishing with like minded people, a polity of his own. He may be perfectly right in saying that this does no harm.
As to the potency of a fee simple title such as the owner Mr McTavish enjoys, he relies upon the statement of the High Court of Australia in Commonwealth v. New South Wales 33 CLR 1 at page 42 picked up in Fejo [1998] HCA 58 at paragraph 43 wherein it was said in the High Court that an estate in fee simple confers:
"the lawful right to exercise over, upon and in respect of the land every act of ownership which can enter into the imagination."
Another strand of authority relied on is that in Plenty v. Dillon which in the context of service of process shows the continuing importance of the old adage that an Englishman's home is his castle.
The reference to Plenty v. Dillon is 171 C.L.R. 635 and the paragraphs particularly relied on by Mr Smith are paragraph 4, that is a quotation of Lord Denning, paragraph 8 where Semayne's case is noted and paragraph 24 which referred to:
"the sense of injustice which is apt to be generated by the unlawful invasion of a person's rights, particularly when the invader is a government official."
The statutory material relied on by Mr Smith includes provisions in the Property Law Act 1974 which confirm that interests and rights with respect to land must be in writing and the like; see sections 10 and 11.
Mr Smith's point is that is that nothing whatever has been given away by Mr McTavish which would give the Council rights to control what is done on the land of the kind that the Council is attempting to assert.
There is reference to the Land Act 1994, among other things, to Section 508, preserving former interests, and Section 400, strictly limiting rights of entry. The Council, of course, claims no rights under that Act - which does not apply to the property in any event. Mr Smith took comfort in a footnote to Section 5 subsection (1), which enacts,
"This Act applies to all land including land below high-water mark."
The footnote is, and I quote,
"Although this Act generally applies to non-freehold land, most freehold land contains a reservation to the State for minerals. To that extent, this Act applies to all land."
The matter of reservations is important. Mr Smith's contention is that the relevant Deeds of Grant contain the only relevant reservations which are the familiar ones in respect of minerals and oil.
Otherwise, he argues, the State has abandoned control over what is done on the land, at least so far as it has no adverse impact on outsiders. While not conceding that there is any room for the Council's planning scheme to operate, Mr Smith notes that the use being made of the land is a permitted one; he argued that no further permit or authority could be required for erection of buildings connected with such a use.
As Mr Fynes-Clinton for the Council notes, it is not open to this Court to accede to Mr Smith's arguments, given the Court of Appeal's decision in Bone v Mothershaw [2003] 2 Queensland Reports 600. As it happens, I was the District Court Judge who heard the initial appeal from the Magistrates Court decision imposing a hefty penalty on the appellant there for matters to do with tree clearing. If I recall correctly, some analogy with the present situation existed, in that what he had failed to do was submit a program to the relevant local authority for the reinstatement of vegetation which he'd unlawfully cut down.
There was a certain amount of sympathy, especially from Williams JA, for the appellant's situation, his Honour observing at paragraph 37 that many right thinking citizens would consider that the absence of the provision for compensation made the relevant ordinances unreasonable.
The Court of Appeal judgment, as I read it, plainly requires me today to accept that regulation is compatible with the notion of fee simple titles. Needless to say, the judgments deal with the High Court decisions which I have noted, Plenty v. Dillon aside. While it is attractive to contemplate that citizens who feel like Mr Smith ought to be entitled to withdraw to live as they wish to in relatively isolated locations, there is no feasible way of devising planning and other regulatory arrangements which would easily permit that. At all events, planning authorities have not been prepared to draw lines defining areas where planning controls do or do not apply.
Mr Smith's arguments become unacceptable in an urban context where, presumably, he would wish to argue that he could construct a building on his land without complying with the setback requirements designed to protect his neighbours' amenity. He would presumably argue that if so moved he should be entitled to construct a church on that urban land which again might be satisfying to him but would not be acceptable to his neighbours.
In the circumstances, Mr Smith's arguments cannot survive Bone v. Mothershaw and this court has to reject them.
Little attention was devoted during the appeal to the penalty imposed by the Magistrate. That was substantial. The Council established to the Magistrate's satisfaction a claim to professional costs of $5080 and an entitlement to court costs of $126.40 and outlays of $192.45. On top of that there was a single fine in the amount of $6000. To an extent, the Magistrate had to set his own tariff for the offending.
While Mr Smith urges that the penalty should have been a low amount, he presents no particular justification. The rough equivalence of the fine to the aggregate of sums in which the Council demonstrated it was out of pocket seems to me appropriate. The fine is not large when measured against the maximum available which is a much larger sum, close to $125,000. It can be said in hindsight that Mr Smith had it in his control to limit his exposure by filing the applications that Council required.
There is no reason to doubt the genuineness of his adherence to the principles that he has mentioned in court. Unfortunately for Mr Smith, the pursuit of principles can prove costly. I do not accept his suggestion that by its pursuit of application fees and the like, the Council is seeking impermissibly to enrich itself at the expense of fee simple owners who buy his lights should be spared such depredations.
I am not satisfied that the pecuniary orders made by the Magistrate should be changed. So the appeal will be dismissed.
...
HIS HONOUR: For reasons that I have mentioned, I am not persuaded that the costs ought to be awarded on the indemnity basis. Although I agree with Mr Fynes-Clinton that the points are untenable, it is just different enough from the Bone v. Mothershaw point, which was that ordinances were confiscatory and therefore invalid, so that I think that costs ought to be awarded on the standard basis. Courts have allowed lay litigants a certain amount of indulgence, waiting until unorthodox, heretical arguments have been so categorized more than once before ordering indemnity costs on the basis of their being raised again. The appeal is dismissed with costs to be assessed on the standard basis.