Tseng v Brisbane City Council

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.