Tseng v Brisbane City Council - [2020] QDC 48

DISTRICT COURT OF QUEENSLAND

CITATION:

Tseng v Brisbane City Council [2020] QDC 48

PARTIES:

EN-TZU TSENG
(Appellant)

v

BRISBANE CITY COUNCIL

(Respondent)

FILE NO/S:

2831/19

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

3 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

10 February 2020

JUDGE:

Barlow QC DCJ

ORDER:

Paragraph 1 of the enforcement order made on 16 July 2019 be set aside.1.

The date shown on the enforcement order be varied to 16 July 2019.2.

Otherwise the enforcement order be confirmed.3.

The appeal otherwise be dismissed.4.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – GENERALLY – pursuant to s 163(1) of the Planning Act 2016, the respondent charged the appellant with carrying out assessable development without a permit, by way of depositing fill onto property without a development permit – whether the appellant was responsible for the placement of the fill – whether expert evidence on the depth of the fill proved the charge beyond reasonable doubt

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – GENERALLY – pursuant to s 440ZG of the Environmental Protection Act 1994, the respondent charged the appellant with depositing a contaminant expected to move into waters – whether there was a reasonable expectation that the soil would move into waters

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – GENERALLY – pursuant to s 363E of the Environmental Protection Act 1994, the respondent issued a direction notice in relation to depositing a contaminant expected to move into waters – whether requirements of direction notice were satisfied

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – SENTENCING – the learned magistrate imposed a fine of $40,000 for all three offences – whether the penalty was manifestly excessive

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – OTHER MATTERS – the appellant was ordered to pay $8,000 for professional costs, $103 for filing and serving of the complaint and summons, $1,125 for witness costs and $45,000 for investigation costs – whether the costs were reasonable

Environmental Protection Act 1994 (Qld) ss 363E, 440ZE, 440ZG

Planning Act 2016 (Qld) s 163(1)

SOLICITORS:

Self-represented appellant

City Legal for the respondent

Table of Contents

Grounds of appeal

Mode of appeal

The relevant law

Charge 1
Charge 2
Charge 3

Charge 1 – carrying out assessable development without a permit

Evidence about the deposit of fill on the land (ground 1)
Evidence about the depth of fill on the land (ground 2)
Conclusions on charge 1

Charge 2 – depositing a contaminant expected to move into waters (grounds 3 and 4)

Charge 3 – failure to comply with a direction notice (grounds 5 and 6)

Ground 7 – penalty manifestly excessive and based on errors

Ground 8 – costs

Ground 9 – the enforcement order

Conclusions

Introduction

The appellant, Ms Tseng, owns two adjacent parcels of land, which she bought in April 2016. The…

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: [2020] QDC 48
Decision Date: 3 April 2020

CaseChat Overview and Summary

The appellant, Mr Tseng, appealed against convictions for carrying out assessable development without a permit, depositing a contaminant expected to move into waters, and contravening a direction notice, all pursuant to various sections of the Planning Act 2016 and the Environmental Protection Act 1994. The Brisbane City Council charged Mr Tseng with these offences after he deposited fill onto property without a permit, with the fill containing contaminants that were expected to move into waters. The learned magistrate found Mr Tseng guilty of all charges and imposed a fine of $40,000, along with several costs orders.

The primary legal issues were whether Mr Tseng was responsible for the placement of the fill, whether the evidence of the depth of the fill proved the charge beyond reasonable doubt, whether there was a reasonable expectation that the soil would move into waters, and whether the requirements of the direction notice were satisfied. The appeal also questioned the proportionality of the penalty and the reasonableness of the costs orders.

The court found that the evidence was sufficient to prove Mr Tseng's responsibility for the placement of the fill and that the depth of the fill was such that it proved the charge beyond reasonable doubt. The court also found that there was a reasonable expectation that the soil would move into waters and that the requirements of the direction notice were not satisfied. Regarding the penalty, the court held that the fine was not manifestly excessive, considering the seriousness of the offences. The court also found the costs orders to be reasonable.

The appeal was partially successful. The court set aside paragraph 1 of the enforcement order and varied the date shown on the enforcement order to 16 July 2019. The court otherwise confirmed the enforcement order and dismissed the appeal in its entirety.

Orders

Orders of the court

Paragraph 1 of the enforcement order made on 16 July 2019 be set aside.1.

The date shown on the enforcement order be varied to 16 July 2019.2.

Otherwise the enforcement order be confirmed.3.

The appeal otherwise be dismissed.4.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Tseng v Brisbane City Council [2020] QDC 48
PARTIES:	EN-TZU TSENG (Appellant) v BRISBANE CITY COUNCIL (Respondent)
FILE NO/S:	2831/19
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	3 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2020
JUDGE:	Barlow QC DCJ
ORDER:	Paragraph 1 of the enforcement order made on 16 July 2019 be set aside.1. The date shown on the enforcement order be varied to 16 July 2019.2. Otherwise the enforcement order be confirmed.3. The appeal otherwise be dismissed.4.
CATCHWORDS:	ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – GENERALLY – pursuant to s 163(1) of the Planning Act 2016, the respondent charged the appellant with carrying out assessable development without a permit, by way of depositing fill onto property without a development permit – whether the appellant was responsible for the placement of the fill – whether expert evidence on the depth of the fill proved the charge beyond reasonable doubt ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – GENERALLY – pursuant to s 440ZG of the Environmental Protection Act 1994, the respondent charged the appellant with depositing a contaminant expected to move into waters – whether there was a reasonable expectation that the soil would move into waters ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – GENERALLY – pursuant to s 363E of the Environmental Protection Act 1994, the respondent issued a direction notice in relation to depositing a contaminant expected to move into waters – whether requirements of direction notice were satisfied ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – SENTENCING – the learned magistrate imposed a fine of $40,000 for all three offences – whether the penalty was manifestly excessive ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – OTHER MATTERS – the appellant was ordered to pay $8,000 for professional costs, $103 for filing and serving of the complaint and summons, $1,125 for witness costs and $45,000 for investigation costs – whether the costs were reasonable Environmental Protection Act 1994 (Qld) ss 363E, 440ZE, 440ZG Planning Act 2016 (Qld) s 163(1)
SOLICITORS:	Self-represented appellant City Legal for the respondent