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Case studies

Case Studies

Complaint against the Retirement Benefits Fund (RBF) – Administrative Error

Complaint against Launceston City Council (LCC) – Parking fine

Complaint against the Break O’Day Council – Liability for Rates

Complaint against the Department of Justice, Director of Building Control – Failure to act

Complaint against the Department of Primary Industries Water and the Environment (Shack Sites Project) – Changing valuations

Complaint against the Department of Infrastructure, Energy and Resources (DIER) - Accidents to Driving School cars during student licence tests

Complaint against Launceston City Council, Crown Lands and the Recorder of Titles – Disclaimed land

Own motion investigation - Canteen prices at Risdon prison

Own motion investigation - Royal Hobart Hospital - employment and supervision of overseas-trained Surgeon

Complaint against Royal Tasmanian Botanical Gardens

Miscellaneous complaints

Case A

Case B

Case C

Case D 

Complaint against the Retirement Benefits Fund (RBF) – Administrative Error

In May 2001, the RBF wrote to the complainant to advise that as a consequence of legal advice received in relation to the legislative requirements of RBF Contributory Scheme members who were seconded from a substantive position with a Tasmanian State Service employer, RBF members should have continued to contribute directly to the RBF Contributory Scheme during their period of secondment.  As a consequence of this, the complainant was in arrears.  Arrangements were then made for the complainant to pay the arrears from his Investment Account into the Contributory Scheme.  The employer contributions that were paid into the complainant's Investment Account should have been transferred to his State Service employer (in this case, Forestry Tasmania).  To have done otherwise would have constituted 'double dipping'.

The complainant was not aware that the employer contributions had been incorrectly left in his Investment Account.  As a consequence, the statements he continued to receive from RBF overstated the true account balance.  It was not until late 2007, when the complainant advised RBF that he was planning his retirement that his accounts were scrutinised.  In February 2008, the complainant was advised by the RBF that more than $43,000 had been removed and paid to Forestry Tasmania as a consequence of the administrative error.  This figure comprised employer contributions and investment returns.

The RBF apologised for the error and any distress it may have caused.  The complainant wrote to the RBF advising that he had made several financial decisions, on the basis of the ongoing advice from the RBF of the account total, now deemed incorrect.  He sought compensation by requesting the account balance be restored to the amount as at February 2008.  The complainant also claimed that he had suffered direct financial losses as a result of misinformation provided to him by the RBF.

The RBF declined his claim to reinstate his account balance and provided a comprehensive written explanation as to what had occurred and why.  Another apology was provided.  The RBF also indicated it may be prepared to consider some form of appropriate remedial action but it would be necessary for the complainant to identify and establish precisely what, if any, actual financial loss he had suffered as a consequence of the Board's error and submit this evidence to allow the Board to properly consider the claim for compensation.  Further correspondence ensued between the complainant and the RBF but the complaint remained unresolved.

The complainant lodged a complaint with my Office and provided a detailed explanation of the history of the complaint as well as copies of correspondence between the two parties.  After assessing the information provided, we wrote to the complainant advising that the complaint would not be accepted for investigation.  Reasons were provided, including but not limited to the fact that the complainant was not entitled to the money in the first place and it did not follow that because of an unintentional administrative error, he automatically had an entitlement to the amount in dispute.  It was also pointed out that the RBF had left the door open for the complainant to submit evidence that would be considered for possible financial compensation.  At the time of lodging the complaint with me, the complainant had not submitted any evidence of the previously claimed financial loss.

The complainant was afforded an opportunity to make a submission as to why the complaint should be accepted.  However, nothing was received in the time allocated and the file was closed.

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Complaint against Launceston City Council (LCC) – Parking fine

The complainant's wife was issued a parking infringement notice by the LCC. It was not paid by the due date and this was admitted by the complainant. A reminder notice was issued by the LCC and the complainant claimed that a cheque for $20 had been posted. LCC later advised that there was no record of this cheque ever being received. 

The Monetary Penalties Enforcement Service (MPES) then issued a notice and the complainant claimed it was not received until 10 days after it was posted. He also claimed that there was insufficient detail on the notice to match it to the infringement notice.

The complainant claimed to have tried to contact MPES to discuss the notice but was unable to get through. MPES advised my Office that the complainant had been contacted by a staff member, and that the complainant had disputed the debt. The complainant was advised at this time to contact the Launceston Registry of the Magistrates Court to make application to set aside the conviction and penalty.

MPES also recorded that his wife had made telephone contact to argue about payment of the final $60.00. MPES provided a copy of the account note to my Office and also explained the entry about the sum of $116.00 on the Debtor Statement.

A further notice was sent to the complainant, as the penalty had still not been paid. A payment was made but not the full amount. The fine had increased because the previous notice had not been adhered to. The full amount was then finally paid. 

MPES advised my Office that the complainant still had legal recourse to dispute the original infringement. This information was passed to the complainant and it was suggested he seek legal advice in the first instance. The complainant was also notified by my Office that the complaint was not substantiated and reasons were provided. The complainant did not respond within the timeframe allocated and the file was closed.

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Complaint against the Break O’Day Council – Liability for Rates

A complaint was received from B in relation to his inadvertent placement on Council’s records as the owner of a property in High Street, Mathinna, and the charges for rates imposed on him by Council in relation to the property.

The substance of B’s complaint was that he does not own the piece of land in question, but does own other property in Mathinna, but following what he claims was Council’s error in listing him as the ratepayer he has mistakenly been paying rates on the subject land for years.  When he realised the error, B asked for a refund of the moneys paid, but Council refused that request.

The owner of the property was clearly denoted on the title documents, and it is not B.

After my office had notified Council of the complaint, its General Manager was given authority to negotiate a settlement with B, and forwarded an offer for his consideration.  In light of the fact that Council was now responding to B’s concerns, my Office took no further action but ensured that an acceptable resolution was reached before closing the file.

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Complaint against the Department of Justice, Director of Building Control – Failure to act

The complainants entered into a contract with a builder for the construction of their new home at Lauderdale.  Subject to some flexibility, the contract required the house to be completed by April 2006.  By December 2006, so dissatisfied were the complainants with the progress of the building works and the builder’s standard of workmanship that they terminated the contract.  They withheld the final progress payment due under the contract pending the independent assessment of what they considered to be defective and unfinished works.

Six months after terminating the contract, and having failed in their attempts to resolve outstanding issues with the builder, the complainants submitted a detailed complaint to the Director of Building Control in accordance with s 32(1) of the Building Control Act 2000 (the Act) in June 2007.  The Director sought a response from the builder who through his lawyer advised that there was a dispute over the contract and forecast legal action.  In light of that, the Director took no further action, but did not communicate his decision in this regard to the complainants.  When they contacted Workplace Standards Tasmania twice in the ensuing six months, they were not provided with any information about their complaint. 

In March 2008 the builder took action against the complainants in the Supreme Court to recover amounts he alleged to be outstanding under the building contract.  In June 2008 the Director sought further input from the builder, and in this way discovered that the Supreme Court action was under way.  A site inspection was conducted in August 2008, but the Director decided not to further investigate the complainant’s complaint pending the outcome of the court action.  The complainants then approached my office.

Having made enquiries and considered the relevant provisions of the Act, my officers and I concluded that the Director:

  • did not conduct an investigation as soon as practicable after receiving Mr Plumb’s complaint as he was required to do by s 35(1) of the Act;
  • by either not considering the complaint further after receiving the response from the builder’s solicitor, or deciding to take no action to investigate it as legal action had been foreshadowed, abrogated his responsibilities under both the Act and the Code;
  • adopted a policy in choosing to take no action pending the outcome of the Supreme Court action which had no legislative or logical basis, and which was inconsistent with his statutory obligations;
  • failed to properly communicate with the complainants and to keep them informed as to the progress of their complaint; and
  • did not inform the complainants of his apparent decision to take no action on the complaint after receiving the response from builder’s solicitor.

In light of these conclusions, I recommended that the Director:

  1. complete an investigation of the complaint lodged by the complainants in accordance with S 35(1) of the Act as soon as practicable;
  2. abandon any policy of not acting on a complaint when other action is in train; and
  3. review all complaint files held by him to ensure that no other complaint file is stalled by reason of the application of such a policy.

These recommendations were accepted and implemented immediately by the Department.

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Complaint against the Department of Primary Industries Water and the Environment (Shack Sites Project) – Changing valuations

A complaint was referred to my office by the Honourable Greg Hall MLC in relation to Mr and Mrs C, who had been leasing a shack site for over 20 years.  In 2006 they were offered freehold title to the property as part of the Shack Sites Project; the sale price was accepted, contracts were drawn up and a deposit paid.  As pensioners, Mr and Mrs C were able to apply for an extension of time to arrange finance, and did so.

As the time for completion of the sale approached, Mr C contacted the Department and advised that there would be some further delay in obtaining finance.  He was advised that the matter would be referred to the Department’s solicitor and if there were any concerns, the solicitor would contact him.  There was no further communication.

Mr and Mrs C proceeded to arrange the finance and forwarded a bank cheque in settlement of the purchase price some two months later.  The Department acknowledged receipt of the funds, but there was a delay in processing the contracts, and Mr and Mrs C heard nothing further for some months.  After six months had passed since the payment of the purchase price, the Department contacted the Cs and advised that the purchase was not proceeding as the property had been re-valued and the shack site was now considered to be worth more than double the original price.

Mr and Mrs C could not arrange the additional finance immediately, so entered into a further lease arrangement with the Department to enable them to attempt to raise the additional capital, and were told that the value of the property would not change during the currency of the lease.  The necessary additional finance was arranged, and Mr and Mrs C were ready to proceed with the purchase.  However, after the termination of the lease, and prior to the purchase being agreed, the valuation was again reviewed and increased by an additional 50%.

It was after this that the matter was referred to my office, and the Department contacted.  As a result, the Department sought and received advice from the Solicitor-General, which indicated that it had wrongly cancelled the 2006 sale agreement following the failure of Mr and Mrs C to pay the balance of the purchase price by the first agreed extension date.

We took the view that if the cancellation of the original contract had not been valid, then the site should be offered to Mr and Mrs C on the same basis as provided in that contract, at the original price.  In the circumstances, the Department agreed with that view, and the sale was finally completed on those terms.

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Complaint against the Department of Infrastructure, Energy and Resources (DIER) - Accidents to Driving School cars during student licence tests

The proprietor of a driving school complained in relation to three cars which were damaged (one in October 2007, one in October 2008, and another during the course of the investigation in December 2008) while students were undertaking licence tests with testing officers from DIER. The complaint was that DIER asserted that it did not owe a duty of care to the driving school and denied any liability for the cost of repairs to the damaged cars

In the usual course, only the testing officer and the student are allowed to be present in a car during the licence test. The cars are provided by the driving school and owned by the driving instructors. The complainant stated that there had never been an accident during the course of ordinary lessons at the driving school.

There is an excess of $1200 on the insurance taken out by driving instructors and this, and the fact that their income stream is interrupted while their cars are off the road being repaired, means that they can ill afford to have their cars damaged. The complainant also complained that some testing officers were new and had had only a short period of training, and that some would take their eyes off the road in order to write their test reports. It was claimed that these two factors contributed to the damage sustained.

In response to the complaint, the Registrar of Motor Vehicles said that the testing officers’ foremost duty was to ascertain whether or not an acceptable standard of driving had been attained by the learner driver, and that they were not acting as supervisory drivers during the course of the test.  In the specific instances raised by the complainant, the Registrar advised that the testing officers concerned had taken all reasonable steps to avoid the accidents.

We considered that the Registrar's position was not on the face of it unreasonable, but we thought that there could be some benefit in attempting to conciliate the complaint, particularly in relation to ongoing issues of dispute between the two parties.  Both sides agreed to attempt conciliation, but despite the best endeavours of all concerned, there remained unresolved issues.   In the absence of a conciliated resolution of the matter, my office was unable to take the complaint further, given that whether or not a duty of care existed was a question of law, rather than a matter of administration.

Subsequently the complainant took the matter to the Magistrates Court and was successful, being awarded all losses including loss of earnings on the basis that the Department had a duty of care to instructors’ vehicles. Subsequently, The Supreme Court overturned the decision on appeal, finding that although the Department did have a duty of care, that duty was not breached on the particular occasion in question.

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Complaint against Launceston City Council, Crown Lands and the Recorder of Titles – Disclaimed land

This complaint concerned a block of land in a suburb of Launceston.  Despite rocketing suburban land prices, this particular block was almost completely worthless. Among its less appealing characteristics is a large Transend pylon over the fence and major powerlines running diagonally across the block. The regulations covering such powerline corridors mean that the height of trees and structures on the land are severely restricted.

The complaint was against Launceston City Council, which was pursuing the complainants for unpaid rates on a property in Youngtown (the land).  The matter was complicated by the fact he complainants were made bankrupt in 1982 and the land formed part of their estate.  Accordingly, their interest in the land had vested in their trustee in bankruptcy (the Official Trustee) pursuant to s 58(1)(a) of the Bankruptcy Act 1966 and any interest they had in it had thereby been expunged  The trustee did not transfer the property into its name but left it in the name of the complainants. 

The trustee tried unsuccessfully over many years to sell the land but could not do so. Finally, in January 1997, the trustee disclaimed any interest in the land pursuant to s 133 of the Bankruptcy Act 1966.  The trustee gave notice of the disclaimer to Council and to the Recorder of Titles, and the Recorder lodged a Recorder’s caveat on the title to the land to prevent any further dealings with it.  In the meantime, the complainants had been discharged from their bankruptcy, but they remained on the title as the registered proprietors of the land, and on the Valuation Roll as the owners of the land even though their interest in the land had long since been lost. 

In June 2006, Council issued a demand to the complainants, seeking to recover from them an amount of $16,494.00 in outstanding rates.  This was the first notice seeking payment of rates received by the complainants from Council in over 24 years, and Council’s refusal to withdraw the demand prompted the complaint to us.  A trustee in bankruptcy is not personally liable for any rates accruing against land that forms part of a bankrupt estate, and Council relied on s 86 of the Local Government Act 1993 which provides that the persons who appear as owners of land on the Valuation Roll are liable for rates to maintain its claim against the complainants. 

Following preliminary enquiries, my officers and I came to the initial view that the land had reverted to the Crown once it had been disclaimed by the trustee, but Crown Land Services had no knowledge of the disclaimer and denied any interest in the land.  The Crown is not exempt from liability for rates if it is the owner of land, but it is not the owner of land for the purposes of the Local Government Act until such time as it appears as such on the Valuation Roll.  The only persons Council could take action against remained the complainants.  Crown Land was not going to act to address the situation, the trustee had done all that was required of it by notifying the Recorder, and there was little that the complainants could do.   It became clear to us that there was an anomaly in the law and not only did the complainants’ concerns need to be addressed but systems needed to be put in place which would prevent the situation they faced from happening again.

I sought advice from the Solicitor-General and that advice confirmed that the land had indeed reverted to the Crown upon the trustee’s disclaimer, but also confirmed that the complainants remained liable for outstanding rates by virtue of their names remaining on the Valuation Roll.  The situation had arisen because in Tasmanian law, there is no requirement that the Valuer-General be notified of a disclaimer.  To rectify the situation, the Solicitor-General suggested that their would need to be either legislative change or some procedure adopted whereby upon receipt of a disclaimer, the Recorder is to notify the Crown and any interested parties of her intention to register the Crown as owner of the land.

Following receipt of the above advice, one of my officers met with the Recorder of Titles, the Valuer-General and a representative of Crown Lands to discuss possible resolution of the matter.  The Recorder was able to identify a process by which the land could be transferred to the Crown under the Land Titles Act 1980 with notices being sent to the Valuer-General, the State Revenue Office and Council notifying each of the change of ownership.  It was proposed that the process be included in the Land Titles Office’s Knowledge Management System for use in the case of any future disclaimers of land under the Bankruptcy Act 1966.  The process was applied to the land in question and the complainants names were removed from the title and the roll.  Ultimately, Council agreed to remit the outstanding rates in order to resolve all outstanding issues.

The complaint highlighted an unusual situation that had apparently not arisen in Tasmania before, and I am pleased that my office was not only able to bring the issues to the fore and resolve the complaint, but also contributed to the adoption of an administrative process which should prevent the same situation from occurring again.

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Own motion investigation - Canteen prices at Risdon prison

A number of complaints were received in the reporting year from prisoners about canteen prices and canteen supplies at Risdon. A number were made verbally to Official Visitors and visiting Ombudsman staff, and there were two formal complaints.

Review of Prices

In late August 2009, a copy of the latest canteen price list was obtained. During the first two weeks of September one of my officers conducted a survey, comparing prices at the prison canteen with those at a Coles supermarket and three small grocery outlets in the community.  The three smaller shops chosen were a medium-sized grocery outlet, a fruit and vegetable outlet with a small grocery line and a smallish corner shop selling high end delicatessen items and prepared food, as well as some ordinary groceries.

The canteen list was first compared against prices at Coles to get an idea of the cheapest price for the various items. It was difficult to check more than a limited number of items because Coles did not carry the full range of the items on the canteen list, and some items on the canteen list were not identified by brand or quantity or both. Because of this and also because of time constraints, 30 items were chosen for the purposes of the survey. However none of the smaller shops had all of the items.  Of the items that were able to be matched, the medium-sized grocery outlet tended to have the lowest prices. There was very little difference between the canteen prices and the prices found at the medium-sized grocery outlet, but the canteen was slightly cheaper overall.

Coles was of course the cheapest over the whole range, because of its greater buying power and large turnover. It would not be possible for the prison canteen to offer items as cheaply as a large supermarket, because the buying power of the canteen is only that of a small corner shop and wholesale prices often reflect the volume of goods being bought.  It was therefore surprising that the prices offered by the canteen for small confectionery items and chips were in fact often cheaper than those obtainable at the supermarket.

The results of the survey were provided to Risdon prison management for comment. They responded in part as follows: --

Canteen items are not made available to supplement the daily meals provided by the TPS. These items are there as a privilege not as a right and are provided at basically cost price.

While inmates may see some items "on special" from time to time, the TPS does not have the capacity to source "specials" from different suppliers, however every attempt is made to obtain canteen items at the cheapest possible price. The prison’s mark-up is 13.5% on top of the wholesale price. The TPS itself does not make any profit from the canteen and any small profit that is generated from the sale of canteen items is used to subsidise the prisoner Quit Smoking Program.

Variety/Healthy options

Some prisoners had also voiced concern about the lack of variety and the lack of healthy options available through the canteen.

A survey was conducted in this regard also and canteen lists were obtained from similar-sized prisons at Darwin (NT), Barwon (Vic) and Port Augusta (SA). 

Overall, Risdon prison offers much greater variety than Darwin even though the two facilities are of comparable size and are more isolated than the two other prisons. Darwin puts smiley face signs beside their healthy options such as fruit and nuts and muesli bars on their canteen list, but generally it provides a much more limited range of food items than Risdon. Barwon and Port Augusta offer a greater variety of foodstuffs than both Darwin and Risdon, but some of these foods would only be appropriate where kitchen facilities and refrigeration are available to individual prisoners, which is not the case at Risdon.

Risdon offered greater variety in hobby materials through its canteen than any of the other prisons.

It was clear from the comments provided by the other prisons that what was provided by each canteen was what they had storage for, what they could obtain from local suppliers and what the prisoners wanted to buy.

In relation to this survey, the Director of Prisons said:

I support your suggestion to include a variety of healthy options on the canteen in principle, and can advise that requests to include items in the canteen are assessed on a case-by-case basis against a range of relevant factors. That said, there is a limit to the overall range of items which we can offer and invariably the inclusion of additional item(s) will result in the removal of others to make room for them.  Therefore, overall inmate demand for a product, or range of products, is a relevant consideration.

Conclusion

Rising prices in the prison canteen at Risdon reflect rising prices in the general community, and the survey we conducted indicates that the prices being charged in the canteen are no higher than those obtainable in a similar small shop in the community.

Prison Services advised us that there is a very small mark up on canteen items and the small profit generated from the sale of canteen items is used to subsidise the prisoner Quit Smoking Program. Prisoners had complained that there was a large mark up on tobacco products, but tobacco products were no more expensive than they would be in a corner shop in the community.

In relation to healthy options, the prisons surveyed in South Australia and Victoria offer a much wider range of foodstuffs than Risdon, including dairy and delicatessen items and a limited range of fresh vegetables. Because the canteen does not have the facility for refrigerated storage, and prisoners at Risdon do not have access to individual refrigerators, the range of foods available is limited. For instance, eggs are only available to inmates in low security areas with cooking facilities. The prison has indicated that it does not want prisoners preparing cooked meals on sandwich makers for hygiene reasons, or cooking eggs in a microwave because of the potential for eggs to explode.

Overall, we were satisfied that the prices charged in the canteen are reasonable and the variety on offer is also reasonable given the facilities available.

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Own motion investigation - Royal Hobart Hospital - employment and supervision of overseas-trained Surgeon

During December 2008, articles in The Age and The Mercury newspapers drew attention to the case of an overseas-trained surgeon who had been employed at the Royal Hobart Hospital (RHH), and who had been found to lack the necessary surgical ability after only a couple of months in the job.  The surgeon had been employed as a staff-specialist urologist.  It was claimed in the articles that he had been incapable of performing even the most basic of operations. 

The case raised questions deserving of consideration under both the Ombudsman Act and the Health Complaints Act.   It gave cause to question the adequacy of administrative processes at the RHH which could have allowed this situation to arise, but also raised a significant issue of public safety.

My office conducted preliminary enquiries into the matter, to determine whether it warranted investigation.  I subsequently issued a notice of investigation under the Ombudsman Act to the Secretary of the Department of Health and Human Services on 22 May 2009, indicating my intention to investigate the following aspects of the case  -

  • the selection and appointment processes followed by the RHH
  • the adequacy of the supervision of the surgeon's clinical and surgical performance.

For various reasons, it became difficult to resource this investigation.

In January 2010, I met with senior managers at the RHH to discuss the case, to determine whether the investigation should continue.  I was satisfied by those discussions and by subsequent correspondence that administrative systems at the hospital had changed significantly since the case arose, with the result that it was unlikely that similar circumstances would arise again.

The RHH admitted that there had previously been undue reliance upon the screening of candidates by the Australian Medical Council, by specialist Colleges and by the Medical Council of Tasmania.  It was also admitted that the relevant credentialing committee within the hospital had not been exercising sufficient independent judgement in relation to the validity of such external assessments, and in relation to the reliability of referee reports.

I was told that a number of changes had been made to relevant processes at the RHH, including -

  • face-to-face interviews in all cases
  • direct contact by the hospital with all referees
  • independent research into the credentials of all candidates and referees
  • the requirement that every candidate must provide their current "Head of Department" as one of their referees
  • the use of employment consultants to identify suitable candidates, instead of relying upon advertisements
  • more stringent review by the credentialing committee of the training and fitness to practise of prospective appointees
  • active intervention by the Chief Medical Officer to make sure that service delivery was maintained by new appointees.

 As to the second-last of these points, I was informed that supervision reports for new appointees now go back to the credentialing committee, so that it carries continuing responsibility for making sure that the appointee should be allowed to continue to practise within the hospital.  If the supervision reports were not satisfactory, the person's credentialing would be terminated.

In the face of these improvements to the hospital's processes, I was satisfied that continuation of the investigation was unnecessary, and I terminated it in February 2010.

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Complaint against Royal Tasmanian Botanical Gardens

The complainant had attended the Royal Tasmanian Botanical Gardens in company with others to serve a document on an employee in relation to a restraint order pertaining to a private dispute.  The Director considered this was inappropriate and purported to ban the complainant from the Gardens indefinitely.

The restraint order had been negotiated through court mandated mediation, and provided that neither party was to approach the other in any circumstances.

The complainant complained to my office about the ban, and in response to the complaint, the Director cited a duty of care to employees and her authority as an “authorised officer” under the Royal Tasmanian Botanical Gardens Act 2002 (the Act) to justify the ban.

I was concerned that natural justice had not been afforded to the complainant as the ban had been put in place without him being given the opportunity to comment on the decision to impose it, and his requests for reconsideration had been refused.  I also had reservations as to the Director’s authority to impose such a ban in any event, rather it seemed to me that the provisions of the Act relied on were intended to remove trouble-makers on a particular day.  In any event, the restraint order was the appropriate mechanism to ensure proper behaviour.

After my office raised these concerns with the Board of the Royal Tasmanian Botanical Gardens, it sought advice from the Solicitor-General before reconsidering the situation.  The Solicitor-General agreed with the our view of the matter and the ban was lifted.

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Miscellaneous complaints - noise, pollution and flies

We received a number of complaints in the reporting year from people who had moved to the country or were living in rural areas on non-farming properties who were concerned by the failure of their councils to regulate the farming practices of their neighbours. On the other hand, complaints were also received from farmers and producers about the way their activities were being regulated in order to address the concerns of their non-farming neighbours.

Case A

A resident of a small rural township complained about the noise, smell and flies caused by sheep agisted on land adjacent to his home, which was within the town’s urban zone. He stated that when he purchased the property there was no stock on the adjacent land, but by October 2009, over a hundred sheep and lambs were moved on to it.  Because the adjoining land (and therefore the sheep) came within four metres of his house, the complainant said that he was forced to close doors and windows in order to block out some of the noise, particularly the bleating which kept him awake until after midnight.  He complained that the Council seem to imply that because he was a newcomer to the town he had to put up with traditional practices.

Council’s response was that the land had been used for the purposes of grazing livestock for a considerable period before the planning scheme which created the urban zone came into force, and therefore that the owner of the land enjoyed ‘existing use right’. Existing use rights arise by operation of s 20(3) of the Land Use Planning and Approvals Act 1993, which provides that nothing in any planning scheme is to prevent the continued use of any land for the purposes for which it was lawfully being used before the coming into operation of the scheme.  The grazing of stock was lawful on the land before the scheme came in, so it could continue despite the change to the land’s zoning.  It was not that the complainant was new to the area, it was that the use was old.

Council is however, able to exert some control under s 199 of the Local Government Act 1993 over activities which might amount to a nuisance such as anything that causes or is likely to cause danger or harm to the health, welfare or safety of the public, or which gives rise to excessive or unreasonable levels of noise or pollution.  As a result of the complaint, Council dispatched its Environmental Health Officer to the property.  An inspection was made and photographs were taken, and it was concluded that there was nothing, particularly no accumulation of faeces, in close proximity to the complainant’s property which would create odour or fly problems or pose a risk to public health.  The officer also concluded that in the circumstances, the bleating of sheep would not constitute a noise nuisance. 

We were of the view that Council had acted appropriately and according to law, and that the decisions of the Environmental Health Officer were not on their face unreasonable.

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Case B

The complainants live in a small but growing coastal township, where they keep chickens.  The complainants have their chicken sheds in the centre of a three-quarter acre block zoned for primary production, and take the view that they are primary producers. 

They objected to the restrictions placed upon them by Council with regard to noise from their roosters. The restrictions had been imposed as a result of complaints from neighbouring residents. Council required that the roosters be kept quiet before 7:00 am on weekdays, before 9:00 am on Saturdays and before 10:00 am on Sundays and public holidays. The complainants complained that Council had included their roosters in the same classification as chainsaws and lawnmowers when determining the noise restrictions, and they objected on the basis that the roosters were livestock not machines. The roosters were kept in soundproof boxes within the chicken sheds and they wanted to let them out at 8:30 a.m. on weekends.

Council advised my office that there was nothing in the Council bylaws referring specifically to roosters crowing, so the same hours of operation for machinery were applied. We concluded that Council’s decision had not been unreasonable, given the number of complaints from neighbours, the fact that the area around the complainants’ property is now fairly densely populated and the noise of the roosters was disturbing to many over a large area.

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Case C

Another complaint involved complainants who had recently purchased coastal land and built a house overlooking the water. On the water was a fish farm which operated on an area of water leased from the Crown, through the Department of Primary Industries, Power, Water and Environment

The complainants contacted the Department, seeking to have the marine farm zone reduced in size so that it did not extend in front of their property.  They cited as the reason for this the noise caused by generators powering lights all night and the effects of those lights.  They also complained about the noise from other operations during the day and about the visual effects of unused pens in front of their house which they described as an unsightly mess used by hundreds of seagulls whose screeching was keeping them awake.

The lease had been entered into before the complainants moved to the area and the response from the Department to the complainants and to my office was that it was reasonable to expect that there would be some noise associated with the operations of a marine farm, but acknowledged that its operations needed to comply with the guidelines for noise emissions contained in the Environmental Management and Pollution Control Act 1994. The Department noted that the leased area would not be stocked for some months, and in the interim it agreed to conduct preliminary background ambient noise measurements to be used as data for future monitoring of the farm’s operations to ensure compliance with regulatory requirements. 

My office indicated to the complainant that it considered the response of the Department to be reasonable and that any farming practice could at times produce annoyance for neighbours.  The Department acknowledged that some of the annoyances complained of might need to be addressed, but said that the noise survey would need to be completed in order to establish this, and any modification might take some time to achieve. In the circumstances, I took the view that there was nothing in the conduct of the Department that warranted the intervention of my office, but suggested to it and the complainants that the situation could be reviewed after the results of the noise survey had been obtained and when any decision in relation to compliance by the marine farm with noise emission guidelines had been made.

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Case D

Another complaint was against a Council over its refusal to prevent or control spray drift from the complainant’s neighbour’s orchard onto his own property. The complaint had a long history and the complainant had already taken action in the Resource Management and Planning Appeal Tribunal (RMPAT) under the Environmental Management and Pollution Control Act 1994 (EMPC). His application was dismissed by the Tribunal and the Chairman of RMPAT pointed out that the definition of environmental harm was very specific under the Act and the object was not to prevent any spray drift but to prevent serious or material environmental harm.  There was no evidence of either serious environmental harm or material environmental harm.  There was nothing unlawful about spraying, but the fact of whether the spraying unreasonably interfered with a person's enjoyment of the environment was a matter which had to be decided upon. RMPAT had decided there was no evidence at all of unreasonable interference.

My office advised the complainant that in refusing to entertain his complaints RMPAT had clearly indicated to him that no complaints in relation to his neighbour's spraying would be entertained unless he could provide actual evidence of harm or actual evidence of unreasonable interference of his enjoyment of the environment.  Action under section 199 of the Local Government Act 1993 (LGA) required the same level of evidence with respect to the definition of nuisance.  Evidence of actual or likely danger or harm to health was required.  Evidence that his neighbour was spraying did not fulfil these requirements and it therefore seemed likely that the courts would also reject his complaint under the LGA.  We considered the decision of the Council to refuse to take any action under the LGA or the EMPC Acts was therefore reasonable.

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