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…
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- Case
- [2020] QDC 48
- Decision Date
CaseChat Overview and Summary
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.