Browning v Vukolic[2024] QCA 195

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  Mr Vukolic successfully appealed his conviction on three charges of carrying out assessable development without a development permit on land owned by him at Willawong (the subject land) contrary to s 163(1) of the Planning Act 2016 (Qld) (the Act): Vukolic v Browning [2022] QDC 279 (the reasons).  The ground of appeal on which Mr Vukolic succeeded 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).  Even though the learned District Court judge considered (at [141] of the reasons) that the better view of the construction of s 163 was that the matters articulated in s 163(2) were not elements of the offence, his Honour concluded (at [2] and [149]) that, following Serratore v Noosa Shire Council [2022] QPELR 505, the elements of the offence created by s 163 included the matters in s 163(2).  The District Court judge found (at [151]) that the complaint was invalid, as it did not articulate all the legal elements of the offence, and the convictions on the complaint must be set aside.  On the application of the construction of s 163 adopted by the District Court judge, it was also found (at [152]) that the complainant failed to establish at trial that the three exceptions in s 163(2) were excluded beyond reasonable doubt.
2. [2]
   The formal orders made by the District Court judge on 16 December 2022 were:

3. “1.
   The appeal is allowed.

3. 2.
   The conviction with respect to charges 1, 2 and 3 be quashed.

3. 3.
   The appellant is found not guilty with respect to charges 1, 2 and 3.

3. 4.
   The enforcement order and costs order made by the primary judge be set aside.

3. 5.
   The Respondent is ordered to pay the Appellant’s costs in the Magistrates Court proceeding below pursuant to s 158(1) of the Justices Act 1886 fixed in the amount of $31,882.49.

3. 6.
   The Respondent is ordered to pay the Appellant’s costs of the appeal pursuant to s. 226 of the Justices Act 1886 fixed in the amount of $3,450.00”

3. [3]
   Mr Vukolic did not succeed on the other ground of appeal before the District Court judge, namely that the complaint had been commenced out of time which turned on the question of whether the complainant was Ms Browning, who was an employee of the Brisbane City Council or the Council itself.  The District Court judge concluded (at [2], [71] and [76] of the reasons) that Ms Browning was the complainant and the complaint was brought within time.
4. [4]
   The complainant, Ms Browning, applies for leave to appeal on the ground that the District Court judge erred as a matter of law in ruling that the elements of an offence under s 163 of the Act that must be set out in the charge on the complaint in order to establish an offence known to law and that had to be proved by the complainant beyond reasonable doubt were not restricted to the matters set out in s 163(1), but also included each of the matters set out in s 163(2) of the Act.
5. [5]
   The complainant’s reasons for why the Court should grant leave for the appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) are that the appeal to the District Court involved a question of statutory construction of an offence provision in the Act and the reasons reveal a divergence in the view as to the proper construction of the elements of the offence provision between that set out in the reasons (but not adopted) and the construction applied in Serratore (at [38] and [61]) and an appeal would resolve this inconsistency with respect to an offence of significant public interest.
6. [6]
   Mr Vukolic filed a notice of contention to be considered on the appeal if leave to appeal were granted to the complainant.  Mr Vukolic contends that the District Court judge’s decision should be affirmed on the ground that his Honour erred in dismissing the ground based on whether the complainant was Ms Browning or the Council.
7. [7]
   The proper construction of s 163 of the Act raises an important question of law for enforcement of the Act and prosecution of offences under that provision.  Leave to appeal should be granted so that issue and the issue raised by the notice of contention can be dealt with on the appeal.

Legislative provisions

8. [8]
   In accordance with the suggestion made on behalf of Mr Vukolic, the version of the Act that has been used in these reasons for convenience is that which was up to date as at 26 February 2020.
9. [9]
   Section 160(1) of the Act sets out what chapter 5 of the Act is about:

“This chapter is about offences against this Act, including development offences, and ways to prevent or remedy the effect of those offences.”

10. [10]
    As explained in s 160(2), part 2 of chapter 5 (which contains s 161 to s 166) creates development offences.  Section 161 of the Act (which defines “development offence”) at the relevant time provided:

“This part creates offences (each a development offence), subject to any exemption under this part or to chapter 7, part 1.”

11. [11]
    Each of s 162, s 163, s 164 and s 165 of the Act creates a separate development offence.  Section 162 creates the offence of carrying out prohibited development and provides:

“A person must not carry out prohibited development, unless—

3. (a)
   the development is carried out under a development approval given for a superseded planning scheme application; or

3. (b)
   the local government for the area in which the development is carried out has agreed, or is taken to have agreed, to a request under section 29(4)(b) for the development.”

12. [12]
    Section 163 deals with the offence of carrying out assessable development without permit and provides:

3. “(1)
   A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

3. Maximum penalty—

3. (a)
   if the assessable development is on a Queensland heritage place or local heritage place—17,000 penalty units; or

3. (b)
   otherwise—4,500 penalty units.

3. (2)
   However, subsection (1) does not apply to development carried out–

3. (a)
   under section 29(10)(a); or

3. (b)
   in accordance with an exemption certificate under section 46; or

3. (c)
   under section 88(3).

13. [13]
    Of these offence provisions, it is only s 163 that comprises two subsections.  The maximum penalty for an offence under each of s 162, s 164 and s 165 is set out at the foot of that provision.  The maximum penalty for an offence under s 163 is set out at the foot of s 163(1).
14. [14]
    An exemption that is provided for under part 2 of chapter 5 is found in s 166 which provides for exemptions in an emergency which is defined to mean in s 166(8) “an event or situation that involves an imminent and definite threat requiring immediate action (whether before, during or after the event or situation), other than routine maintenance due to wear and tear”.
15. [15]
    Part 3 of chapter 5 is about notices from an enforcement authority (such as the Council) requiring a person to refrain from committing a development offence, or to remedy the effect of a development offence.  Section 168 regulates the circumstances in which an enforcement authority can give an enforcement notice where the enforcement authority reasonably believes a person has committed, or is committing, a development offence and the contents and requirements of that enforcement notice.
16. [16]
    Section 173A of the Act specifies the time limitation for starting a proceeding for an offence against the Act:

3. “(1)
   A proceeding for an offence against this Act must start—

3. (a)
   within 1 year after the offence is committed; or

3. (b)
   within 1 year after the offence comes to the complainant’s knowledge.

3. (2)
   In a complaint starting a proceeding for an offence, a statement that the matter of the complaint came to the complainant’s knowledge on a stated day is evidence the matter came to the complainant’s knowledge on that day.”

17. [17]
    Section 41 of the Acts Interpretation Act 1954 (Qld) (AI Act) provides:

“In an Act, a penalty specified at the end of—

3. (a)
   a section (whether or not the section is divided into subsections); or

3. (b)
   a subsection (but not at the end of a section); or

3. (c)
   a section or subsection and expressed in such a way as to indicate that it applies only to part of the section or subsection;

3. indicates that an offence mentioned in the section, subsection or part is punishable on conviction (whether or not a conviction is recorded) or, if no offence is mentioned, a contravention of the section, subsection or part constitutes an offence against the provision that is punishable on conviction (whether or not a conviction is recorded)—

3. (d)
   if a minimum as well as a maximum penalty is specified—by a penalty not less than the minimum and not more than the maximum; or

3. (e)
   in any other case—by a penalty not more than the specified penalty.”

18. [18]
    Section 42(1) of the Justices Act 1886 (Qld) (the JA) deals with the commencement of proceedings for an offence under that Act by a complaint:

“Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.”

19. [19]
    Although s 218(1) of the City of Brisbane Act 2010 (Qld) (COB Act) provides that any proceedings by the Council must be started in the name of the Council, that is subject to s 218(2) which provides:

“However, the council may start a proceeding under the Justices Act 1886 in the name of a council employee who is a public officer within the meaning of that Act.”

20. [20]
    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

21. [21]
    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.
22. [22]
    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.
23. [23]
    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.
24. [24]
    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

25. [25]
    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 22^nd day of May 2020 before the undersigned, a Justice of the Peace for the State of Queensland, who says that:”

26. [26]
    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.
27. [27]
    The complaint concludes with the preamble to the signature of the Ms Browning as the complainant with the words:

“WHEREUPON SHARON BROWNING prays that I, the Justice, will proceed in the premises according to law.”

Proceeding in the Magistrates Court

28. [28]
    Mr Vukolic pleaded not guilty when called upon to answer the charges in the Magistrates Court on 13 August 2021.  There was legal argument as to whether the complaint had been filed within the time limited for starting proceedings for an offence against the Act specified in s 173A.  The learned Magistrate decided that the complainant who brings the complaint under s 42 of the JA is personally a party to the proceeding, following Cross Country Realty Pty Ltd v Peebles [2007] 2 Qd R 254 at [9], and that disposed of the limitation defence.
29. [29]
    The summary trial took place on 17 and 18 August 2021.  The Council relied on an evidentiary certificate pursuant to s 57 of the Planning and Environment Court Act 2016 (Qld) dated 13 July 2021 (as permitted under s 278 of the Act) that certified that at no time had a development approval been given by the Council for the clearing of vegetation at the subject land and at no time had a development approval been given by the Council in respect of filling or excavation at the subject land (exhibit 4).  The Council also relied on an evidentiary certificate pursuant to s 231 and s 232 of the COB Act dated 14 July 2021 which showed the description of the land, the appointments and delegations of various persons connected to the investigation and the issuing of the enforcement notices and annexed the relevant parts of the scheme on which the prosecution was based (exhibit 5).
30. [30]
    The Magistrate delivered the decision on the prosecution on 8 October 2021.  Relevantly, for the purposes of the issues that remain in contention in this Court, the Magistrate found that the prosecution did not have to prove that the matters in s 163(2) of the Act did not apply to the assessable development the subject of the charges.  The Magistrate found that the evidence established beyond reasonable doubt the respondent’s guilt of each of the charges.
31. [31]
    There was a further hearing on sentence and costs on 10 May 2022.  Judgment was delivered by the Magistrate on 24 May 2022.  The one fine of $15,000 was imposed for all three offences and Mr Vukolic was ordered to pay professional costs of $6,885, investigation costs of $10,000, witness costs of $201.34 and the costs of the expert witness Mr Collins of $17,713.08.  An enforcement order was made pursuant to s 176 of the Act.

Appeal to the District Court

32. [32]
    The District Court judge explained (at [72]-[75] of the reasons) why he concluded that Ms Browning was the complainant.  In summary they were:

    1. the decision in Stone v Guli [2020] QCA 288 supported the conclusion that when Ms Browning expressly identified herself as public officer in commencing the proceeding, the proceeding was commenced in her name and the decision in Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98 which was implicitly inconsistent with Stone did not compel the conclusion that Ms Browning was starting a complaint by the Council;
    2. even if Dixonbuild were applied, Ms Browning’s complaint did not use “as agent for” or “for and on behalf of” which would have been apt to identify she was commencing a complaint by the Council;
    3. the effect of the words “being a ‘public officer’ as defined by the Justices Act 1886, as amended and a delegate and authorised officer acting in [her] representative capacity” was not such as to constitute Ms Browning a person commencing proceedings for the Council as principal.
33. [33]
    There were five reasons given by the District Court judge (at [127]-[134] of the reasons) to conclude that the elements of the offence created by s 163 are found only in s 163(1):

1. The structure of s 163(1) and (2) of the Act is in the same form as s 88(1) and (2) of the Nature Conservation Act 1992 (Qld) (NCA) considered in Phillips v Spencer [2006] 2 Qd R 47 where it was held that s 88(2) was not intended to establish an element of the offence for which s 88(1) otherwise provided.
2. If the Parliament had wanted to include the matters in s 163(2) as elements of the offence under s 163(1), it could easily have done so.
3. The observation by de Jersey CJ (with whom McMurdo P agreed) in Phillips at [18] that “Section 88(2) specifies a situation in which the offence set out by s. 88(1) could not occur” supported the conclusion that the subject matter of s 88(2) was not an element of the offence.
4. Like the opening words of s 163(2) of the Act, the opening words of s 88(2) of the NCA were “Subsection (1) does not apply to …” which was a form of words that did not persuade the majority in Phillips that s 88(2) was part of the offence.
5. In reliance on the statement found in Vines v Djordjevitch (1955) 91 CLR 512 at 519, s 163(2) is not a general pre-condition to all persons who might breach s 163(1) but rather s 163(2) “denies the … liability in a particular case by reason of additional or special facts”.

34. [34]
    It was the comity issue which the District Court judge dealt with (at [142]-[150] of the reasons) that determined the outcome of this issue contrary to the view reached by the District Court judge (at [141]) that the matters set out in s 163(2) are not elements of the offence created by s 163(1) of the Act.  The construction of s 163 adopted in Serratore was applied.  On the basis that the complaint did not articulate all the legal elements of the offence, as it did not deal with the matters which are the subject of s 163(2) of the Act, the District Court judge concluded (at [151]) that the complaint was invalid which meant that the Magistrate had no jurisdiction to hear the complaint and the convictions must be set aside.

Did the District Court judge err in applying the construction of s 163 of the Act adopted in Serratore?

35. [35]
    The purposive approach to statutory construction is mandated by s 14A(1) of the AI Act.  The relevant provision is construed, so that it is “consistent with the language and purpose of all the provisions of the statute” and the context of the provision that is being construed: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].
36. [36]
    The purpose of the Act is set out in s 3.  It provides the framework for an accountable system of land use planning, development assessment and related matters within the State that facilitates the achievement of ecological sustainability.  Chapter 2 of the Act deals with planning, including the making and application of planning instruments both at the State and local levels.  Part 4 of chapter 2 deals with superseded planning schemes.  In division 1 of that part, s 29 permits a person within one year after a planning scheme and related policies have become a superseded planning scheme to make a superseded planning scheme request to a local government under s 29(4)(a) to accept, assess and decide a development application under a superseded planning scheme or under s 29(4)(b) to apply the superseded planning scheme to the carrying out of development that was accepted development (as defined in s 44(4) of the Act) under the superseded planning scheme.  If the local government decides to agree, or is taken to have agreed, to a request under s 29(4)(b), s 29(10)(a) permits the development to be carried out as accepted development under the superseded planning scheme.
37. [37]
    Chapter 3 of the Act deals with development assessment.  Section 44(1) provides for three categories of development, namely prohibited, assessable or accepted development.  Prohibited development is defined in s 44(2) as “development for which a development application may not be made”.  Assessable development is defined in s 44(3) as “development for which a development approval is required”.  Accepted development is defined in s 44(4) as “development for which a development approval is not required”.  Section 45 provides for two categories of assessment for assessable development, namely code and impact assessment.  Section 46 provides for the giving of an exemption certificate for some assessable development.  Section 46(1) states:

“A development approval is not required for assessable development on premises if there is an exemption certificate for the development.”

38. [38]
    The Act regulates development applications in part 2 of chapter 3.  In division 1 of part 2 of chapter 3, s 48 deals with the identity of the assessment manager for a development application.  The assessment manager’s decision on an application is referred to in s 63 of the Act as the decision notice.  The respective definitions of “development approval”, “preliminary approval” and “development permit” are found in s 49.  A development approval is defined in s 49(1) as any of a preliminary approval, a development permit or a combination of a preliminary approval and development permit.  Section 49(3) provides that a development permit “is the part of a decision notice for a development application that authorises the carrying out of the assessable development to the extent stated in the decision notice”.  Division 2 of part 2 of chapter 3 deals with making or changing applications.
39. [39]
    The Act regulates development approvals in part 5 of chapter 3.  Section 88 is within division 4 of part 5 of chapter 3 and deals with lapsing of approval for failing to complete development.  It provides:

3. “(1)
   A development approval, other than a variation approval, for development lapses to the extent the development is not completed within any period or periods required under a development condition.

3. (2)
   A variation approval for development lapses to the extent the development is not completed within—

3. (a)
   if a development condition required the development to be completed within a stated period or periods—the stated period or periods; or

3. (b)
   if paragraph (a) does not apply—the period or periods the applicant nominated in the development application; or

3. (c)
   otherwise—5 years after the approval starts to have effect.

3. (3)
   However, despite the lapsing of the development approval, any security paid under a condition stated in section 65(2)(e) may be used as stated in the approval or agreement under section 67 (to finish the development, for example).”

40. [40]
    The context for construing s 163 is that it falls within that part of the Act that is introduced by s 161 that, at the relevant time, expressly stated that part 2 creates development offences, subject to “any exemption under this part” or to chapter 7 part 1.  Part 1 of chapter 7 provides for the continuation of uses that were a lawful use of premises if, immediately before a planning instrument change, a use of premises was a lawful use of premises and the change does not stop the use from continuing, further regulate the use or require the use to be changed.
41. [41]
    The parties referred to some authorities that dealt with the difference between an exception and a proviso in working out whether the subject matter of the exception or proviso was an element of the offence or which party bore the onus of proving or excluding the subject matter of the exception or the proviso: Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 601 and Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 258.  As was observed by the High Court in Vines v Djordjevitch (1955) 91 CLR 512 at 519:

“The distinction [between an exception in the enacting clause and a separate proviso] has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance.”

42. [42]
    Dealing first with the circumstance in s 163(2)(a) which is where development was carried out under s 29(10)(a) of the Act, the effect of the terms of s 29(10)(a) is that, where the local government has agreed (or is taken to have agreed) to a request under s 29(4)(b), the development may be carried out as accepted development under the superseded planning scheme.  That means a development permit for assessable development under the Act is not required where s 29(10)(a) applies.  In those circumstances, even without s 163(2), the offence under s 163(1) could not be proved in relation to works carried out under s 29(10)(a) as a development permit was not necessary for those works.  The same process can be applied to each of the circumstances set out in paragraphs (b) and (c) of s 163(2).  The statement in s 46(1) expressly states that a development approval is not required for assessable development where there is an exemption certificate for the development.  That means that where works are carried out in accordance with an exemption certificate under s 46 of the Act, a development permit was not necessary for those works.  The offence under s 163(1) could not be proved in relation to those works by virtue of the authority in s 46(1).  Even though s 88(3) is not as patent as the circumstances covered in paragraphs (a) and (b) of s 163(2), it is of the same effect of permitting further work to be undertaken under a development approval, despite the lapsing of the development approval, where any security paid under a condition may be used as stated in the relevant approval (or agreement) specified in s 88(3).  As in the case of works carried out under s 29(10)(a) and works carried out in accordance with an exemption certificate under s 46, a development permit is not necessary for the works that are authorised by the application of s 88(3) and no offence under s 163(1) could be proved in relation to the works carried that are authorised by s 88(3).
43. [43]
    Collecting each of these circumstances in s 163(2) ensures that those circumstances for which a development permit is not required for the works that are covered by any of those paragraphs in s 163(2) are not overlooked.  To the extent that the Explanatory Notes for the Bill that was enacted as the Act dealt with the clause that was enacted as s 163, reference was made only to paragraph (c) of the clause that was enacted as s 163(2)(c) at p 96 and p 129.  The first brief reference at p 96 of the Explanatory Notes does suggest that s 163(2)(c) itself “contains an exemption from the offence of carrying out assessable development without an effective development permit, for development carried out under” s 163(2)(c).  That passing reference to the exemption being in s 163(2)(c) was made without consideration of the construction that should be given to s 163(2) in the context of the whole Act.  The statement made at p 129 of the Explanatory Notes was more focussed on the effect of s 88(3):

“Subclause (2) (c) and clause 88(3) confirm that security paid in respect of a development approval that lapses under a condition mentioned in clause 65(2)(d) may still be used as stated in the approval or in an agreement about conditions, including for example, to complete the development.  This provision ensures that, if security is applied to complete development in this way, a development offence is not committed.”

44. [44]
    As the District Court judge discerned (at [127] of the reasons), it is relevant that s 163 was enacted in the same form as that of s 88 of the NCA.  Subsections (1) and (2) of s 88 of the NCA that were under consideration in Phillips provided:

3. “(1)
   Subject to section 93, a person, other than an authorised person, must not take, use or keep a protected animal, other than under—

3. (a)
   a conservation plan applicable to the animal; or

3. (b)
   a licence, permit or other authority issued or given under a regulation; or

3. (c)
   an exemption under a regulation.

3. Maximum penalty—3 000 penalty units or 2 years’ imprisonment.

3. (2)
   Subsection (1) does not apply to the taking of protected animals in a protected area.”

45. [45]
    There was a note at the end of s 88(2) that provided that “Section 62 deals with the taking of protected animals in a protected area”.  Section 62 of the NCA provided for an offence of much greater breadth than the taking of protected animals in a protected area as, subject to specified exceptions, it prohibited a person (other than an authorised person) from taking, using, keeping or interfering with a cultural or natural resource of a protected area.  Natural resources were defined under the NCA, in relation to a protected area, to include wildlife.  The classes of protected areas were set out in s 14 of the NCA.  Subject to some specified exceptions, “protected animal” was defined to mean an animal that was prescribed the NCA as “threatened, rare or common wildlife”.  There were also definitions in the NCA for each of threatened wildlife, rare wildlife and common wildlife.  The relevant aspect of the taking of a protected animal that was the focus of s 62(1) was that the protected animal was within a protected area.  The taking of a protected animal could therefore have been an offence against both s 88(1) and s 62(1), but for the effect of s 88(2) of the NCA which gave primacy to the offence under s 62(1) where that provision was applicable when the protected animal was taken from a protected area and excluded the application of s 88(1) to that conduct that constituted an offence under s 62(1).  The purpose of s 88(2) was not to provide a defence to the conduct that can be charged under s 88(1) but to preclude its application to the taking of protected animals in a protected area.
46. [46]
    The offender in Phillips was the executive officer of a company which pleaded guilty to an offence under s 88(1) of the Act.  The offender had also pleaded guilty to an offence under s 162(2) of the NCA in his capacity as executive officer of failing to ensure that the company complied with the NCA.  He was placed on a good behaviour bond and the company was fined $35,000.  Subsequently the offender applied for judicial review of the Magistrate’s decision but the respondent was successful in its application under s 48(1) of the Judicial Review Act 1991 (Qld) for summary dismissal of the application.  The issue in Phillips on the application for leave to appeal from the dismissal of the judicial review application was whether the charge against the company was invalid for failing to allege that the taking did not apply to protected animals in a protected area that was the circumstance referred in s 88(2).  The conclusion reached by de Jersey CJ (at [18]) (with which McMurdo P agreed) was that s 88(2) specified a situation in which the offence set out by s 88(1) could not occur and it would be apparent from the form of the charge and the allegation where the offence occurred whether it was within a protected area.
47. [47]
    A similarity between s 163 of the Act and s 88 of the NCA is that for each section, subsection (1) creates an offence and that at the foot of the subsection the maximum penalty for the offence is specified.  Consistent with s 41 of the AI Act, the fact that the maximum penalty is specified at the foot of subsection (1) in each case indicates that the offence is set out in that subsection.  Another similarity is that subsection (2) in each case expressly states that subsection (1) does not apply in the circumstances that are then specified.  The difference between s 163 of the Act and s 88 of the NCA is the reason for setting out the circumstances in subsection (2) of each provision to which subsection (1) of the provision is stated not to apply.  That difference is not a reason for not following Phillips as to the relevance of the form of the subsection creating the offence for ascertaining the elements of the offence.
48. [48]
    The issue in Serratore was whether the enforcement notices given to the owners of the relevant land were valid as s 168(3)(a) of the Act required the notice to state the nature of the alleged offence.  In order to answer that question for some of the owners Judge Williamson QC considered whether the enforcement notice disclosed all the elements of the offence under s 163 of the Act.  His Honour concluded (at [38] and [61]) that the offence is not completely stated in subsection (1) and that both subsections (1) and (2), taken in combination, provide the complete statement of the factual situation which must be found to exist before criminal liability is incurred under s 163.  His Honour stated at [62] of Serratore:

“Against the background of the above discussion, it is my view, that for a reasonable belief to be formed about an offence against s 163 of the [Planning Act], an enforcement authority (or this court on appeal) is required to ask, and answer, the following questions:

1. Has a person carried out ‘development’?

2. Is the ‘development’ carried out ‘assessable development’?

3. Is the ‘assessable development’ carried out authorised by all necessary development permits?

4. If the assessable development is authorised by a development permit/s, had the permit/s taken effect at the time the development was carried out?

5. Was the assessable development carried out under an exemption certificate under s 46 of the [Planning Act]?

6. Was the assessable development carried out under s 29(10)(a)?

7. Was the assessable development carried out under s 88(3) of the [Planning Act]?”

49. [49]
    Listing the questions in that form shows why the matters that were the subject of questions (e), (f) and (g) were not elements of the offence under s 163(1).  Question (c) asked the correct question “Is the ‘assessable development’ carried out authorised by all necessary development permits?”.  The key to the construction of s 163 of the Act is the expression “all necessary development permits” in s 163(1).  Consistent with the language of s 163(1), all the prosecution must prove beyond reasonable doubt is that all necessary development permits for the works that are the subject of the charge were not in effect at the time they were undertaken.  The use of the word “necessary” limits the offence to one that is committed when the person who carried out assessable development does not have all necessary development permits for the development.  A permit is not required where the development is carried out otherwise in accordance with the respective provisions of the Act set out in s 163(2).  Any of those provisions precluded proof of an offence under s 163(1), even without listing them in s 163(2), where the works that would have otherwise been assessable development were authorised by s 29(10)(a), s 46 or s 88(3).
50. [50]
    As the complainant has the burden of proving the offence under s 163(1) beyond reasonable doubt, that is done by proving that the person who carried out the works did not have the necessary development permits for the works that are asserted to be assessable development.  If the facts of the matter raise any issue about the applicability of other provisions of the Act which dispense with the requirement for a development permit for those works, the complainant must also exclude beyond reasonable doubt the application of any of those provisions as part of the proof of what development permits were necessary for the works that were carried out.  The relevant element of the offence is that the person who carried out the assessable development did not have all necessary development permits in effect for the development.  The matters listed in s 163(2)(c) are not separate elements of the offence under s 163(1).
51. [51]
    The offence under s 162 of the Act is created by the offence being set out in terms that “[a] person must not carry out prohibited development” followed by the word “unless” and two circumstances are set out respectively in paragraphs (a) and (b).  The maximum penalty for that offence is then set out at the foot of s 162.  The circumstance set out in s 162(b) which means an offence is not committed under s 162 is equivalent to s 29(10)(a).  The different structure of the respective offence provisions in s 162 and s 163(1) means that the complainant in respect of an offence under s 162 would need to exclude beyond reasonable doubt the circumstances set out in s 162(b) as an element of the offence under s 162, even though the development was authorised under s 29(10)(a).  That is an anomaly but not a sufficient anomaly to affect the conclusion reached above that the matters listed in s 163(2) are not separate elements of the offence under s 163(1).
52. [52]
    The conclusion reached by the District Court judge (at [141] of the reasons) that the matters articulated in s 163(2) were not elements of the offence created by s 163(1) was therefore correct before the District Court judge considered the comity issue.  The District Court judge was in error in adopting the construction of s 163 that was applied in Serratore.  The complainant succeeds on her ground of appeal.

Was Ms Browning the complainant?

53. [53]
    It is therefore necessary to deal with Mr Vukolic’s notice of contention.  It is apparent from the form in which the complaint was drafted, naming Ms Browning as the complainant and as a public officer (as defined) by the JA, and that the complaint was signed by Ms Browning as complainant that Ms Browning intended to utilise the process for starting a proceeding under the JA in the manner permitted by s 218(2) of the COB Act which means the proceeding is in the name of the Council employee as complainant.
54. [54]
    The respondent’s contention that it was the Council which was the complainant and not Ms Browning depends on the effect given to the additional description of Ms Browning as “a delegate and authorised officer acting in [her] representative capacity” and designating her role at the Council after the description of her being a public officer.  The respondent relies on authorities such as Dixonbuild and Steiner v Seri [2012] QCA 226 to assert that this additional description of Ms Browning means that she was acting as the agent of the Council in bringing the complaint.
55. [55]
    Dixonbuild can be distinguished as the chief operating officer of the Ipswich City Council who swore the complaint in Dixonbuild was described in the opening words of the complaint not only as a public officer as defined in the JA but also “as authorised agent for and on behalf of the Ipswich City Council”.  It was also of relevance to the outcome in Dixonbuild that the prosecution was required by the relevant legislation to be started by a local government in the name of the local government.  This can be contrasted with s 218 of the COB Act.
56. [56]
    The issue of the identity of the proper complainant arose incidentally in Steiner in connection with the issue of whether the Magistrate erred in awarding costs in a prosecution under the Building Act 1975 (Qld) in favour of the complainant (Mr Seri) through the Townsville City Council.  Mr Steiner’s contention was that the complainant was Mr Seri and not the Council, Mr Seri did not incur any costs, as they were incurred by the Council, and therefore Mr Steiner should not be liable to pay those costs.  The ground of appeal was unsuccessful as it was observed by McMurdo P (with whom Muir JA and Henry J agreed) (at [53]) that, on the way the trial was conducted, the complainant was the Council.  No determination was made as to who was the complainant in the circumstances as it was found (at [53]) that “if the complainant was in truth Mr Seri, he brought the complaint with the authority of the Council, so that the Council was liable to pay any costs he incurred as complainant”.  The issue that is the subject of Mr Vukolic’s notice of contention was therefore not addressed in Steiner.
57. [57]
    Unlike the complaint in Dixonbuild where the chief operating officer of the Council was described as the authorised agent of the Council, the additional description of Ms Browning as “a delegate and authorised officer acting in [her] representative capacity” did not extend to describing her as the agent of the Council.  The inclusion of Ms Browning’s role in the Council after the reference to “representative capacity” as “being a Compliance and Investigations Manager, Compliance and Regulatory Services, Lifestyle and Community Services, Brisbane City Council” explained her claim to be a public officer for the purpose of s 218(2) of the COB Act.
58. [58]
    The intent of Ms Browning to bring the complaint in her own name was successfully implemented in the terms in which the complaint was drafted and signed by her (without any reference to being an agent or acting on behalf of the Council).  Mr Vukolic does not succeed in having the decision of the District Court judge affirmed on the ground set out in the notice of contention.

Order

59. [59]
    Because the District Court judge had set aside the convictions, the District Court judge did not deal with grounds 8 and 9 of the notice of appeal to the District Court which respectively related to the Magistrate’s decision to make an enforcement order pursuant to s 176 of the Act in the terms made and order Mr Vukolic to pay the investigation costs of the complainant in the sum of $10,000.  Submissions were made to the District Court judge in respect of these grounds of appeal.  It is therefore appropriate that the matter be remitted to the District Court judge to deal with those outstanding matters.
60. [60]
    The orders which should be made are:

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.

61. [61]
    BODDICE JA:  I agree with Mullins P.
62. [62]
    CROW J:  I agree with Mullins P.