Viavattene v Tweed Shire Council & Anor

A Short Chronology 1The plaintiff, Peter Stephen Viavattene, seeks an extension of time within which to seek leave to appeal, and leave to appeal, against convictions entered and fines imposed in the Local Court. 2The plaintiff and his wife, Beverly Georgina Viavattene, are the owners of a parcel of land in Chillingham, New South Wales, Lot 2 in Deposited Plan xxxx67. The postal address is xxxx xxxxx Road Chillingham. The western side of their land faces xxxxx Road. Just south of the plaintiff's land an access road, really just a dirt track, runs off xxxxx Road on its eastern side, turns north and runs roughly parallel to the western side of the plaintiff's land and onto the next parcel of land to the north, which I will call Lot 3. The postal address of that land is xxxx xxxxx Road, Chillingham. 3The plaintiff believed that the access road cut across his land. He complained about it and placed obstacles on it. Correspondence ensued between him and the first defendant, the Tweed Shire Council (the Council). On 7 October 2010 a surveyor visited the site, drew up a plan and concluded that the access road did indeed cut across the north western corner of Lot 2. A copy of the plan is exhibited, at Tab 28, to the affidavit of Kirston Marie Gerathy. 4On 12 October 2010 the Council wrote to the plaintiff and Mrs Viavettene in these terms- Shared Access Driveway to xxxx and xxxx xxxxx Road I refer to an onsite visit attended by Council's Mr Trevor Harris at the request of the owner of xxxx xxxxx Road regarding the above matter. A survey undertaken by professional surveyors organised by the owners of xxxx xxxxxx Road indicated a small encroachment of the access driveway onto your property at the far north western corner. Mr Harris was contacted to assist in possible driveway treatment options to resolve the encroachment issue. Mr Harris arrived onsite to provide driveway advice. The subsequent onsite events, verbal discussions and gestures made by persons present were very intimidating and threatening, according to Mr Harris. These events and verbal discussions have been noted on Council's file. As part of Mr Harris's visit to the site it was found that star pickets and wire have been erected on the road reserve without Council authorisation. Council surveyors subsequently placed survey pegs to determine and confirm the road reserve boundary. These survey pegs have since been removed by persons unknown. The survey confirmed that the star pickets and wire are located in the road reserve. You are therefore requested to remove the star pickets and wire fencing installed in the road reserve immediately. Failure to comply with this directive will result in these works being undertaken by Council staff at your expense. 5The Council began issuing penalty infringement notices. I shall refer to them later. 6The Council wrote again on 5 November 2010 as follows - Access Driveway within xxxx Road reserve at Chillingham Council refers to the various site visits arising from the ongoing dispute in relation to the use of the shared access track. It is our view, as a result of survey investigation by one of Council's registered surveyors, that most of the access track is within the road reserve of xxxxx Road and that a small part of the track encroaches onto your property, Lot 2 in DPxxxx67. The attached plan prepared by our surveyor clearly shows the location of the track in red. It should be noted by you that the road reserve of xxxxx Road in front of your property has an approximate width of 32.5 metres and that the bitumen formation of xxxxx Road has a width of approximately 5.5 metres. The distance between the western edge of the bitumen surface to your front boundary is a distance of approximately 18.5 metres. It is within this 18.5 metre corridor that the shared access track is located. The owners of Lot 3 to the north have obtained a section 138 approval to construct an access driveway within the road reserve to access their property directly and Council as the roads authority has issued that approval. Such approval gives the owners of Lot 3 every legal right to proceed with the construction of the access driveway. Such works will then place the access driveway wholly within the road reserve. Should any further obstructions be placed within the road reserve corridor, we put you on notice that Council will continue to issue penalty infringement notices. 7The Council wrote again on 19 November 2010 in these terms- Road Reserve xxxxx Road, Chillingham Council has been advised that the access driveway to the neighbouring property, xxxx xxxxx Road, was constructed yesterday, and that the driveway is within the road reserve. These works have been completed in accordance with an application under Section 138 of the Roads Act 1993 that has been approved by Council. The new gate providing entry to xxxx xxxxx Road is wholly within their private land. Council's registered surveyor pegged the boundary to establish the boundary between private land and the road reserve to enable the access driveway to be correctly located within the road reserve. It is suggested that should you disagree with the boundary determination made by our registered surveyor, you should engage another registered surveyor to peg your property boundaries to determine if there is any variance with the boundary determination. Until you have engaged a registered surveyor to establish the property boundaries, and unless such surveyor establishes that there is an error in Council's survey you have no evidence to validate your strong belief that the access driveway is on your private land. As Council has surveyed the boundary by a registered surveyor and holds the relevant data to show that the access driveway is now totally within the road reserve the continued placement of objects on the driveway, removal/shifting of gravel from the driveway and the removal of survey pegs from the road reserve will compel Council to issue further penalty infringement notices each time we have been notified that these offences under the Roads Act 1993 have occurred. It is strongly suggested that you seek independent survey advice to clarify the location of the property boundaries of your property. 8There was further correspondence with a number of repeated themes. The plaintiff and Mrs Viavattene never accepted that the access road had ceased to encroach on their land. The Council suggested that they engage their own surveyor for an opinion on the matter and suggested how the dispute might then be dealt with. The Council required them to stop obstructing the access road. 9The penalty notices issued by the Council were for asserted infringements of Division 3 Clause 11 (1) (b) of the Roads Regulation 2008, in placing on a road anything likely to restrict or endanger the use of the road by the public or interfere with public convenience. The first, served under cover of a letter of 15 November 2010, was for an asserted infringement on 28 October 2010. Seven further notices were given under cover of a letter of 22 November 2010, dealing with asserted infringements on 11 November, 18 November, 19 November (3 infringements) and 20 November (2 infringements). The last notice, served under cover of a letter of 3 December 2010, was for an asserted infringement on that day. The total amount claimed to be payable as a penalty was $4,140. 10On 19 December 2010 the plaintiff was convicted in his absence at the Local Court at Murwillumbah. Enforcement orders issued in due course. 11On 10 May 2011 the plaintiff applied for an annulment of the fines. On the same day he filed a summons in this Court seeking an urgent injunction restraining the owners of Lot 3 from trespassing on his land. In substance the plaintiff was asserting that the defendants were trespassing by using the access road to enter their land. On 17 May 2011 the plaintiff and Mrs Viavattene jointly filed a Statement of Claim seeking an injunction, among other orders, against the same defendants. On 7 June 2011 Kirby J declined to grant an injunction pending hearing. On 19 July 2011 Davies J declined to grant interlocutory relief. 12The plaintiff and Mrs Viavattene appealed to the Court of Appeal against the orders of Davies J but later discontinued that proceedings. 13On 16 August 2011 the plaintiff's annulment application was granted and the hearing of the charges alleging that the plaintiff had placed things on the road contrary to cl 11(1)(b) were listed for hearing on the 9 November 2011. On 7 November 2011 the plaintiff applied for an adjournment, and the adjournment was refused on the following day. However, on the day of hearing, when the plaintiff failed to appear, the matters were stood over to 19 December 2011. On 8 December 2011 the plaintiff made a further application to adjourn the hearing. On 12 December 2011 he was informed by the Local Court that the adjournment application was refused. The plaintiff made a further application on that day. 14On 18 December 2011 the plaintiff sent written arguments to the Local Court asserting that the access road was on his land and that his neighbours were therefore trespassing on his land. 15On 19 December 2011 the plaintiff did not appear and was convicted in his absence. 16On 21 December 2011 he made an annulment application to the Local Court. That was listed for hearing on the 8 February 2012. The plaintiff was informed by letter of 9 January 2012. 17On 8 February 2012 the plaintiff failed to appear and his annulment application was dismissed. 18On 7 March 2013 the plaintiff made a further annulment application in the Local Court and on 3 April 2013 the application was dismissed. 19Whenever the Local Court dealt with the nine infringement notices it did so en bloc. Similarly, applications for annulment were dealt with without discriminating between asserted infringements. 20When a defendant charged with an offence fails to appear before the Local Court, and where the Court is satisfied that the defendant had notice of the proceedings, the Court may at its discretion hear the matter in the absence of the defendant: Criminal Procedure Act 1986 s196. By s199 the Court may determine proceedings on the basis of the Court Attendance Notice without hearing the Prosecutor's witnesses or any other additional evidence if it is of the opinion that the matters set forth in the Court Attendance Notice are sufficient to establish the offence. 21A conviction resulting in that way may be annulled: the Act s 4. 22The transcript of the proceedings in the Local Court shows that the Magistrate heard no evidence additional to the infringement notices, convicted the plaintiff of each offence and imposed the maximum fine for each offence.