Browning v Vukolic

Case [2024] QCA 195

SUPREME COURT OF QUEENSLAND

CITATION:

Browning v Vukolic [2024] QCA 195

PARTIES:

BROWNING, Sharon
(applicant/appellant)
v
VUKOLIC, Miladin
(respondent)

FILE NO/S:

CA No 8 of 2023
DC No 1453 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2022] QDC 279 (Porter KC DCJ)

DELIVERED ON:

18 October 2024

DELIVERED AT:

Brisbane

HEARING DATE:

7 May 2024

JUDGES:

Mullins P, Boddice JA and Crow J

ORDERS:

1.   Leave to appeal granted.

2.   Appeal allowed.

3.   Orders 1 to 6 made by his Honour Judge Porter KC on 16 December 2022 are set aside.

4.   The respondent’s appeal against conviction to the District Court dismissed with costs.

5.   The respondent must pay the applicant’s/appellant’s costs of the application to appeal and the appeal to this Court.

6.   The proceeding is remitted to his Honour Judge Porter KC to deal with grounds 8 and 9 of the notice of appeal to the District Court.

CATCHWORDS:

APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – WRONG PRINCIPLE – GENERALLY – where the respondent successfully appealed to the District Court against his conviction in the Magistrates Court on three charges of carrying out assessable development without a development permit on land owned by him contrary to s 163(1) of the Planning Act 2016 (Qld) (the Act) – where the appeal from the Magistrates Court turned on the issue of whether the elements of the offence under s 163 of the Act were limited to those arising under s 163(1) or extended to include the matters in s 163(2) – where the District Court judge considered that the matters in s 163(2) were not elements of the offence however concluded that, following Serratore v Noosa Shire Council [2022] QPELR 505, the elements of the offence included the matters in s 163(2) – where the District Court judge held that the complaint was invalid because it did not articulate all the legal elements of the offence – whether the District Court judge was in error in adopting the construction of s 163 applied in Serratore

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – OTHER MATTERS – where the respondent successfully appealed to the District Court against his conviction in the Magistrates Court on three charges of carrying out assessable development without a development permit on land owned by him contrary to s 163(1) of the Planning Act 2016 (Qld) (the Act) – where the complaint and summons named Ms Browning as the complainant and described Ms Browning as a public officer as defined by the Justices Act 1886 (Qld) and included the description of Ms Browning as “a delegate and authorised officer acting in [her] representative capacity” and the details of her position with Brisbane City Council – whether the District Court judge was in error in holding that Ms Browning and not the Council was…

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AGLC
Browning v Vukolic [2024] QCA 195
Case
[2024] QCA 195
Decision Date

CaseChat Overview and Summary

Browning v Vukolic involves a case where the respondent, Vukolic, successfully appealed to the District Court against his conviction in the Magistrates Court on three charges of carrying out assessable development without a development permit on land he owned. The appeal turned on the interpretation of sections 163(1) and 163(2) of the Planning Act 2016 (Qld) and whether the elements of the offence were limited to s 163(1) or extended to include the matters in s 163(2). Additionally, the case addressed whether the complaint and summons correctly identified the complainant as Ms Sharon Browning, a public officer, or if it should have been the Brisbane City Council. The District Court had determined that the complaint was invalid as it did not articulate all the legal elements of the offence and that Ms Browning, rather than the Council, was the complainant.

The legal issues that the court had to decide were whether the District Court judge was correct in his interpretation of the Planning Act and the definition of a public officer. Specifically, the court needed to determine if the District Court judge erred in adopting the construction of s 163 applied in Serratore v Noosa Shire Council [2022] QPELR 505, which included the matters in s 163(2) as elements of the offence. Furthermore, the court had to decide if the District Court judge was correct in holding that Ms Browning, not the Council, was the complainant as described in the complaint and summons.

The court found that the District Court judge erred in his interpretation of s 163 of the Planning Act by including the matters in s 163(2) as elements of the offence. The court held that s 163(1) was sufficient to establish the offence and that s 163(2) was not necessary. The court also found that Ms Browning was correctly identified as the complainant as per the complaint and summons, which described her as a public officer acting in her representative capacity. Consequently, the appeal was allowed, and the District Court's orders were set aside. The proceeding was remitted to the District Court to deal with the remaining grounds of appeal.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed.

3. Orders 1 to 6 made by his Honour Judge Porter KC on 16 December 2022 are set aside.

4. The respondent’s appeal against conviction to the District Court dismissed with costs.

5. The respondent must pay the applicant’s/appellant’s costs of the application to appeal and the appeal to this Court.

6. The proceeding is remitted to his Honour Judge Porter KC to deal with grounds 8 and 9 of the notice of appeal to the District Court.

Background

Background to the litigation

For the purpose of s 218(2) of the COB Act, the definition of “public officer” in s 4 of the JA is “an officer or employee of a local government … who is acting in an official capacity”.Agreed facts The respondent had been the registered owner of the subject land since 8 February 2016. The Council gave to the respondent an enforcement notice, in his capacity as the owner of the subject land, on 15 May 2019 about alleged offences against the Act that were substantially the same as the charges and gave to the respondent a second enforcement notice on 18 July 2019 about the same alleged offences. The subject land has an area of 39,676 m2. Since 1 July 2014 the subject land has been located in the Environmental management zone area under the Brisbane City Plan 2014 (the planning scheme). Since 1 July 2014 the subject land has also been located, in its entirety, within the Koala habitat area sub-category of the Biodiversity areas overlay area under the scheme and located, in part, within the Waterway corridor overlay area under the scheme. It was also agreed that on 25 and 26 July 2019 Council officers undertook on-site survey and test pit analyses to confirm the filling that had been undertaken on areas designated in the survey report as Area A and Area B. Area A is shown as having an area of 2,092 m2 and Area B is shown as having an area of 6,765 m2. It was agreed that parts of the recorded filling exceeded 100 mm in depth for Area B which borders the eastern boundary of the subject land, the filling constituted operational work as defined in the Act, and Area B fell within the Waterway corridor overlay area under the scheme. It was agreed that parts of the filling for Area A which borders the western boundary of the subject land exceeded one metre in depth. It was also agreed that the filling constituted operational work and Area A fell outside the Waterway corridor overlay area under the scheme. There was no agreement as to who was responsible for the clearing and filling works, the dates when the works were undertaken and the nature of the vegetation that was cleared.Complaint and summons The opening paragraph of the complaint and summons is:“The complaint of SHARON BROWNING of Brisbane, in the State of Queensland, being a ‘public officer’ as defined by the Justices Act 1886, as amended, and a delegate and authorised officer acting in [her] representative capacity, being a Compliance and Investigations Manager, Compliance and Regulatory Services, Lifestyle and Community Services, Brisbane City Council, made this 22nd day of May 2020 before the undersigned, a Justice of the Peace for the State of Queensland, who says that:” Charge 1 is in terms that, on 16 April 2020, it came to the complainant’s knowledge that on a date, or dates, unknown between 28 June 2017 and 26 July 2019 the respondent at the subject land did carry out assessable development without an effective development permit in effect, contrary to s 163(1) of the Act. The particulars for charge 1 identify that the nature of the assessable development was the clearing of vegetation within a Koala habitat area sub-category under the planning scheme. The particulars assert that the clearing of the vegetation was assessable development, as the clearing was not associated with a dwelling house and exceeding an area of 500 m2, and that the respondent caused the vegetation clearing to occur. The terms of charges 2 and 3 are identical to the terms of charge 1 but with different particulars. In respect of charge 2 the assessable development that is particularised is the filling within the Waterway corridor overlay under the scheme that was carried out on the eastern boundary of the premises to a depth of in excess 100 mm. The particulars for charge 3 are that the assessable development, namely filling, was carried out on the western boundary of the premises and the fill in the location was assessable development, as it exceeded one vertical metre in depth.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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