BMD Constructions Pty Ltd v Stevens (Brisbane City Council) - [2007] QDC 97

DISTRICT COURT OF QUEENSLAND

CITATION:

BMD Constructions Pty Ltd v Stevens (Brisbane City Council) [2007] QDC 097

PARTIES:

BMD Constructions Pty Ltd
(Appellant)

v

Stevens (Brisbane City Council)
(Respondent)

FILE NO/S:

D3240/06

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court

DELIVERED ON:

1 June 2007

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2007

JUDGE:

Forde DCJ

ORDER:

The appeal is allowed.

The decision of the learned magistrate of 30 June 2005 is set aside.

The complaint is dismissed.

It is ordered that the respondent do pay the costs, including reserved costs if any, of the appellant of the appeal and the hearing before the learned magistrate to be assessed or agreed.

CATCHWORDS:

UNSAFE AND UNSATISFACTORY VERDICT – Failure to discharge onus of proof – rejection of uncontested evidence

REHEARING – approach following summary hearing – rehearing on the evidence

DRY MUCKING – sweeping sediment – shovelling sediment- sediment flow into stormwater drain – hosing sediment

Environmental Protection Act 1994 (Qld) s 33.

Environmental Protection (Water) Policy 1997 (Qld) s 32.

Justices Act 1886 (Qld) ss 222, 223, 225.

Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1

Gipp v The Queen [1998] 194 CLR 106

Morris v The Queen (1987) 163 CLR 454

Parsons v Raby [2007] QCA 98

R v Shepherd (1990) 170 CLR 573

Townsville City Council & Anor . v Chief Executive, Department of Main Roads [2005] QCA 226.

COUNSEL:

Mr B. Farr for the Applicant.

Mr W. Cochrane for the Respondent.

SOLICITORS:

Mr J. Varitimos for the Applicant.

Brisbane City Legal Practice for the Respondent.

Introduction

The appellant, BMD Constructions Pty Ltd is a development company. It was developing land for residential use at Calamvale adjacent to a new housing estate and some bushland. From the photographs[1] it appears that the estate was in the final maintenance stages. It appears to be a tidy, landscaped estate with bitumen and gutters in Benhaim Street.[2] In fact, the appellant was carrying out a clean up in order to obtain the development approval. After heavy rain, soil and mud were deposited on the roadway in what is described as the proposed Fatima Place. That street runs at right angles to Benhaim Street. The subject stormwater drain is near the truck as shown in Exhibit 1 and Exhibit 2.[3]
[1] Exhibit 1
[2] The first photo Exhibit 1
[3] Layout Plan Sheet 1; Roads and Drainage Plan Sheet 2

This is an appeal by the appellant against the decision of a magistrate given on 2 November 2006. The appellant was found guilty of depositing sand, silt or mud in a stormwater drain in the proposed Fatima Place, Calamvale on 30 June 2005. The appellant was fined $300.00 and ordered to pay court costs of $68.40 and professional costs of $1,315.00 with no conviction recorded. The prosecution was by Peter Joseph Stevens[4] as a public officer employed by the Brisbane City Council. The charge related to a breach of s 32(1)(b) of the Environmental Protection (Water)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] QDC 97
Decision Date: 1 June 2007

CaseChat Overview and Summary

In the case of BMD Constructions Pty Ltd v Stevens (Brisbane City Council), the appellant, BMD Constructions, was fined for depositing sand, silt, or mud in a stormwater drain in the proposed Fatima Place, Calamvale. The fine was issued by the Brisbane City Council, prosecuted by Peter Joseph Stevens, and the case was heard and decided by a magistrate. BMD Constructions appealed the decision on the grounds that the magistrate failed to properly consider the evidence and dismissed the complaint.

The primary legal issue before the court was whether the magistrate had correctly applied the law and evidence in finding BMD Constructions guilty of breaching section 32(1)(b) of the Environmental Protection (Water) Policy 1997 (Qld). The court had to determine if the evidence presented demonstrated that sediment was hosed into the stormwater drain in breach of the policy. BMD Constructions argued that all sediment had been removed from the roadway before hosing, contrary to the respondent's claim that significant sediment remained and was subsequently hosed into the drain.

The court found that the magistrate had erred in rejecting uncontested evidence that the sediment was removed from the roadway before hosing. The court emphasised that the onus was on the prosecution to prove the breach, and the magistrate had failed to discharge this onus by disregarding the evidence that the sediment had been cleared from the roadway. The court concluded that the evidence presented by BMD Constructions showed that they had taken reasonable steps to prevent sediment from entering the stormwater drain. As a result, the appeal was allowed, the decision of the magistrate was set aside, and the complaint was dismissed. Additionally, the respondent was ordered to pay the appellant's costs associated with the appeal and the hearing before the magistrate.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the learned magistrate of 30 June 2005 is set aside.

3. The complaint is dismissed.

4. It is ordered that the respondent do pay the costs, including reserved costs if any, of the appellant of the appeal and the hearing before the learned magistrate to be assessed or agreed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The decision of the learned magistrate of 30 June 2005 is set aside. The complaint is dismissed. It is ordered that the respondent do pay the costs, including reserved costs if any, of the appellant of the appeal and the hearing before the learned magistrate to be assessed or agreed. The appellant, BMD Constructions Pty Ltd is a development company. It was developing land for residential use at Calamvale adjacent to a new housing estate and some bushland. From the photographs[1] it appears that the estate was in the final maintenance stages. It appears to be a tidy, landscaped estate with bitumen and gutters in Benhaim Street.[2] In fact, the appellant was carrying out a clean up in order to obtain the development approval. After heavy rain, soil and mud were deposited on the roadway in what is described as the proposed Fatima Place. That street runs at right angles to Benhaim Street. The subject stormwater drain is near the truck as shown in Exhibit 1 and Exhibit 2.[3] [1] Exhibit 1[2] The first photo Exhibit 1[3] Layout Plan Sheet 1; Roads and Drainage Plan Sheet 2 This is an appeal by the appellant against the decision of a magistrate given on 2 November 2006. The appellant was found guilty of depositing sand, silt or mud in a stormwater drain in the proposed Fatima Place, Calamvale on 30 June 2005. The appellant was fined $300.00 and ordered to pay court costs of $68.40 and professional costs of $1,315.00 with no conviction recorded. The prosecution was by Peter Joseph Stevens[4] as a public officer employed by the Brisbane City Council. The charge related to a breach of s 32(1)(b) of the Environmental Protection (Water) Policy 1997 (Qld). The Policy is subordinate legislation pursuant to s 33 of the Environmental Protection Act 1994 (Qld). The appeal is brought pursuant to s 222 of the Justices Act 1886 (Qld). The grounds of the appeal are: In support of the appeal, counsel tendered written submissions[5] and made oral submissions. [5] Exhibit A; Exhibit B are the respondent’s submissions Mr. Smith was employed as the foreman at the site by the appellant. He gave an interview to two Council Officers, Mr. Haines and Mr. Forster on 30 June 2005. It was taped[6] Also, written notes were taken and signed by Mr. Smith.[7] It is noted in Exhibit 5 that instructions were given to Mr. Smith ‘to install sediment screens to the area, sandbags and geotextile to the stormwater gully. Road to be dry mucked and hosed onto grass.’ [6] Exhibit 4 and a transcript is on the Record[7] Exhibit 5 It should be made clear that the road surface described as 109 Benhaim Street is that part in the proposed Fatima Place. It had not been named at that point but as appears from the complaint, it is the roadway on the corner adjacent to 109 Benhaim Street. There was no dispute about that fact on appeal. Mr. Smith gave evidence that before he hosed the road surface in what is the proposed Fatima Place, he caused the sediment to be shovelled and then swept from the roadway. That evidence was not challenged. In fact, on appeal, Mr. Cochrane submitted that it was not really contested that sweeping occurred.[8] The respondent’s case was that after sweeping significant sediment remained which was hosed away into the stormwater drain and in breach of s 32(1)(b) of the Policy.[8] Transcript of appeal (TOA) 38.1 - 28

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BMD Constructions Pty Ltd v Stevens (Brisbane City Council) [2007] QDC 097
PARTIES:	BMD Constructions Pty Ltd (Appellant) v Stevens (Brisbane City Council) (Respondent)
FILE NO/S:	D3240/06
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court
DELIVERED ON:	1 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2007
JUDGE:	Forde DCJ
ORDER:	The appeal is allowed. The decision of the learned magistrate of 30 June 2005 is set aside. The complaint is dismissed. It is ordered that the respondent do pay the costs, including reserved costs if any, of the appellant of the appeal and the hearing before the learned magistrate to be assessed or agreed.
CATCHWORDS:	UNSAFE AND UNSATISFACTORY VERDICT – Failure to discharge onus of proof – rejection of uncontested evidence REHEARING – approach following summary hearing – rehearing on the evidence DRY MUCKING – sweeping sediment – shovelling sediment- sediment flow into stormwater drain – hosing sediment Environmental Protection Act 1994 (Qld) s 33. Environmental Protection (Water) Policy 1997 (Qld) s 32. Justices Act 1886 (Qld) ss 222, 223, 225. Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Gipp v The Queen [1998] 194 CLR 106 Morris v The Queen (1987) 163 CLR 454 Parsons v Raby [2007] QCA 98 R v Shepherd (1990) 170 CLR 573 Townsville City Council & Anor . v Chief Executive, Department of Main Roads [2005] QCA 226.
COUNSEL:	Mr B. Farr for the Applicant. Mr W. Cochrane for the Respondent.
SOLICITORS:	Mr J. Varitimos for the Applicant. Brisbane City Legal Practice for the Respondent.