Bowman v Brown[2004] QDC 6

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from a decision of a magistrate at Brisbane who on 17 April 2002 convicted the appellant of three offences under the Integrated Planning Act 1997 (“the Act”).  The following day the magistrate imposed one penalty in respect of the three charges, a fine in the sum of $15,000, ordered that in default of payment the appellant be imprisoned for six months, made an order under s 4.3.20 of the Act, ordered that the appellant pay costs in the sum of $28,240.83, and ordered that in default of this payment he be imprisoned for six months.  Convictions were recorded.  The appellant was allowed 12 months to make those payments.  The appellant appeals against the convictions, the costs order and the order made under the Act.

2. [2]
   There were actually two notices of appeal filed, one in this court on 16 May 2002, and one in the Magistrates Court on the same day. The proceedings in the Magistrates Court were by complaint and summons under the Justices Act 1886 (“the Justices Act”) and accordingly the appropriate mechanism for appeal to this court from the decision of the Magistrates Court was that provided  by Division 1 of Part 9 of the Justices Act.  Section 222(2)(a)(i) of that Act required that the notice of appeal be served on the clerk of the court at the place where the decision was given.  In practice that was achieved by filing the notice in the registry of that court, in the present case the Magistrates Court registry in Brisbane.  The registrar then forwarded the notice of appeal and the Magistrates Court file to the District Court where the matter was allocated a file number in this court, and subsequent steps were taken by filing documents in this court. 

3. [3]
   That was what was done in the present case with the notice of appeal filed in the Magistrates Court, which commenced an appeal under the Justices Act now pending in this court and having file number appeal 2288 of 2002.  The notice of appeal which was filed in this court, in a form appropriate to a civil appeal, was given file number appeal 1888 of 2002.  It was not effective to activate the appellate jurisdiction of this court under the Justices Act, and indeed did not in my opinion effectively invoke any jurisdiction of this court.  That appeal should accordingly be struck out for want of jurisdiction.  On the hearing of the appeal the appellant did not oppose the striking out of whichever appeal was inappropriate;  the submission was made that two notices had been filed out of an abundance of caution.

4. [4]
   The charges which proceeded against the appellant in the Magistrates Court were as follows:

1. in the period between 24 January 2001 and 25 May 2001 inclusive one JOHN ALEXANDER BOWMAN did breach Section 4.3.1 of the Integrated Planning Act 1997 in that he did, at premises situate at 79 Millar Road, Bald Hills, in the Magistrates Court District constituted by the Sandgate Division of the Brisbane District appointed under, and for the purposes of, the Justices Act 1886 and within the area of the City of Brisbane, as constituted by the City of Brisbane Act 1924, start Assessable Development, being Operational Work for Filling or Excavation within the meaning of the Integrated Planning Act 1997 and City Plan 2000, without a Development Permit, within the meaning of the Integrated Planning Act 1997, for such Assessable Development;  and

2. in the period between 24 January 2001 and 25 May 2001 inclusive one JOHN ALEXANDER BOWMAN did breach section 4.3.5 of the Integrated Planning Act 1997 in that he did use premises situate at 79 Millar Road, Bald Hills, in the Magistrates Court District constituted by the Sandgate Division of the Brisbane District appointed under, and for the purposes of, the Justices Act 1886 and within the area of the City of Brisbane, as constituted by the City of Brisbane Act 1924, for the purpose of Extractive Industry within the meaning of City Plan 2000 (by the dredging of gravel, rock, soil and/or sand), when such use was not a Lawful Use within the meaning of the Integrated Planning Act 1997;  and

3. in the period between 24 January 2001 and 25 May 2001 inclusive one JOHN ALEXANDER BOWMAN did breach section 4.3.5 of the Integrated Planning Act 1997 in that he did use premises situate at 79 Millar Road, Bald Hills, in the Magistrates Court District constituted by the Sandgate Division of the Brisbane District appointed under, and for the purposes of, the Justices Act 1886 and within the area of the City of Brisbane, as constituted by the City of Brisbane Act 1924, for the purpose of Industry within the meaning of City Plan 2000 (by the screening and/or washing of material extracted from the earth), when such use was not a Lawful Use within the meaning of the Integrated Planning Act 1997.

Ground 1 – absence of standing

5. [5]
   The first ground of appeal was that the magistrate erred in law in not requiring the complainant to state the jurisdiction the magistrate had to hear the prosecution. There is however no requirement that a magistrate interrogate the complainant in such a way, however useful it may be for any court always to consider (however briefly) whether it has jurisdiction to deal with the matter it is asked to hear. The outline of argument however made it clear that in substance what the appellant is seeking to argue is that the magistrate in fact did not have jurisdiction in the present matter, because the complainant did not have standing to prosecute these charges under the Act.

6. [6]
   As a general proposition any person may institute proceedings for the imposition of a penalty under any Act: Acts Interpretation Act 1954 s 42.  This provision merely codifies the common law:  Bedingfeld v Keogh (1912) 13 CLR 601 at 604; Potts v Brooks, ex parte Potts [1983] 2 Qd R 48 at 50.  In a particular case legislation may, expressly or by implication, limit the category of person who may prosecute for particular offences, or for offences under a particular Act.^[1]  Ultimately the question of whether such a limitation exists is a matter of construction of the Act, but it is not uncommon for some limitation to exist,^[2] and it is therefore not uncommon for a situation to arise where there can be a question of standing to prosecute.  In such circumstances, whether the complainant was a person entitled to prosecute for the particular offence can be a matter of some importance, and, when considering decisions dealing with the question of whether or not some person was entitled to prosecute, it is important to bear in mind that some such limitation is likely to have existed.  In the present case however there is in general no limitation.

7. [7]
   The question of standing is dealt with in s 4.3.18 of the Act, headed “Proceedings for Offences,” in the following terms:

1. (1)
   A person may bring a proceeding in a Magistrates Court on a complaint to prosecute another person for an offence against this part.

2. (2)
   The person may bring the proceeding whether or not any right of the person has been, or may be, infringed by, or because of, the commission of the offence.

3. (3)
   However, proceedings may only be brought by the assessing authority for an offence under –

1. (a)
   section 4.3.1, 4.3.2 or 4.3.3 about the Standard Building Regulation;  or

2. (b)
   section 4.3.2A, 4.3.7, 4.3.15 or 4.3.16.

8. [8]
   The first two subsections are clear enough: the prima facie position is that anybody has standing to prosecute another person for an offence against Part 3 of the Act.^[3]  Subsection (3) however cuts that down, but there was argument before me as to the way in which it did so.  The appellant submitted that the effect of the section was that the “assessing authority” could only bring proceedings for an offence under one of the nominated sections, and that, as the offences did not fall within those listed in subsection (3), the complainant had no standing to prosecute these charges.  The respondent however submitted that the subsection cut down the general conferral of standing on anyone, so that, in respect of offences which fell within the scope of subsection (3), only the assessing authority could bring proceedings.

9. [9]
   In effect the appellant’s argument was that the section overall permitted the assessing authority to bring proceedings for offences within the scope of subsection (3), but anyone else to bring proceedings for any offences.  The respondent on the other hand submitted that the effect of the section overall was that proceedings for offences within subsection (3) could be brought only by the assessing authority, but proceedings for any other offences could be brought by anyone.  The issue is whether subsection (3) should be read as if it said that proceedings may be brought by the assessing authority only for an offence under the nominated sections, or as if it said “proceedings for an offence under [the nominated sections] may be brought only by the assessing authority”.

10. [10]
    I prefer the construction of this subsection contended for by the respondent. There are three reasons for this. The first is that, although the expression of subsection (3) and the position of the word “only” are in my view to some extent ambiguous, and not really consistent with clear English expression, the ordinary or natural interpretation of what has been said there is the version contended for by the respondent.  Second, the extraneous material supports the respondent’s version;  the explanatory memorandum for the bill^[4] which became the Act which included this section described this section as providing “open standing for any person in the community to prosecute for a development offence.  This carries forward the open standing provisions of the current Act.  … Open standing for third party enforcement is now available on a wider range of matters because of the integration effects of IDAS.  Subclause (3) prevents the open standing from applying to offences brought under provisions of the Standard Building Law as these offences deal with matters of detailed technical compliance with building standards.”  That is in my opinion more consistent with the outcome which would be produced by the construction supported by the respondent.  The third reason is that I cannot see any logical reason why the assessing authority should be the only person not capable of bringing a proceeding to prosecute for an offence under the part, other than under the sections nominated in subsection (3).  If the section did have the construction intended for by the appellant, the restriction in subsection (3) would serve no useful, or indeed rational, purpose.

11. [11]
    It was submitted by the appellant that the logic of such a restriction arose from the fact that an assessing authority was entitled to give an enforcement notice under Division 3, which must be preceded by a show cause notice under Division 2.  There is however no provision in the Act which makes either of these steps a prerequisite to prosecution for an offence, although non-compliance with an enforcement notice is made an offence under s 4.3.15.  No doubt it is convenient for the assessing authority to have a range of remedies available to it, but, in circumstances where the Act does not provide that prosecution for an offence is a remedy of last resort, or impose any particular prerequisites to a prosecution for an offence, in my opinion there is no barrier to prosecution without a prior show cause notice or enforcement notice.  There is also the consideration that it would still seem odd if the Act on its true construction meant that anyone except the assessing authority could prosecute for an offence directly, but the assessing authority was required first to give an enforcement notice, preceded by a show cause notice.

12. [12]
    However, it appears to me that there is a more fundamental reason why this argument on behalf of the appellant is not correct. The proposition that subsection (3) deprived the complainant of standing depended on the complainant’s being “the assessing authority”.  That expression is defined in the dictionary in Schedule 10 as follows:

“(a) for development under a development permit other than development to which paragraph (c) applies – the assessment manager giving the permit or any concurrence agency for the application, each for the matters within their respective jurisdictions;  or

2. (b)
   for assessable development not covered by a development permit – an entity that would have been the assessment manager or a concurrence agency for the permit if a development application had been made, each for the matters that would have been within their respective jurisdictions;  or

3. (c)
   for assessable development for which a private certifier has been engaged to perform the functions of a private certifier under Chapter 5 Part 3 – the private certifier or the local government;  or

4. (d)
   for self assessable development other than building or plumbing work – the local government or the entity responsible for administering the code for the development;  or

5. (e)
   for building or plumbing work carried out by or on behalf of a public sector entity – the chief executive (however described) of the entity;  or

6. (f)
   for any other matter – the local government.”

13. [13]
    It appeared to be common ground during the hearing of the appeal that, relevantly for present purposes, the “assessing authority” was the applicable local government, that is, the Brisbane City Council.

Who was the complainant?

14. [14]
    In the present case however the Brisbane City Council was not the person who brought the proceeding to prosecute for the offence. The proceeding in the present case was brought, in accordance with s 42 of the Justices Act, by a complaint in writing made by the complainant in person.^[5]  The complainant in the present case had the usual heading under the Justices Act, and continued:

“The complaint of Mervyn John Brown of Brisbane in the State of Queensland a “public officer” as defined in the Justices Act 1886 as amended and being the Team Leader, Licensing and Compliance West, Development and Regulatory Services, Customer and Community Services Division, Brisbane City Council, made this 26^th day of June 2001 for and on behalf of the said Council before the undersigned, a Justice of the Peace for the said State, who says alleges and avers that he is an officer of the said Council and that:”

15. [15]
    The complaint went on to recite the charges as quoted earlier in this judgement, said that the complainant sought an order pursuant to s 4.3.20 of the Act, and concluded in accordance with the usual form:

“Whereupon the said Mervyn John Brown prays that I, the said Justice, will proceed in the premises according to law.”

16. [16]
    The form was apparently signed by Mr Brown over the inscription “(Signature of Complainant)”. This is followed by the signature of the Justice of the Peace confirming that the complaint was made before the Justice on the date stated, and the Justice then on the next page signed the summons.

17. [17]
    In my opinion, that was a complaint by Mr Brown, and he was the complainant. He made the complaint in his capacity as a public officer as defined in the Justices Act, and made it for and on behalf of the Brisbane City Council, but it was not a complaint in the name of the Brisbane City Council.  The Council was not the complainant, Mr Brown was.  The Justices Act in s 42(1) permits a complaint to be made “by the complainant in person or by the complainant’s counsel or solicitor or other person authorised in that behalf.”  That would readily accommodate a situation where the complainant was a corporation, including a local authority,^[6] rather than a natural person. 

18. [18]
    The authorities distinguish between a situation where a complaint is made by an agent in the name of the principal under this provision, and one where a complaint is made by the agent in his own name. In Crothers v Sheil (1933) 49 CLR 399 the complainant had authority to prosecute on behalf of the Milk Board, but under the relevant act the prosecution had to be in the name of the Board, and the High Court held that in these circumstances a complaint by the agent in his own name was defective, although the defect could be cured by amendment^[7].  It follows from this decision that a complaint made “by the complainant’s counsel or solicitor or other person authorised in that behalf” is one in the name of the complainant (ie the principal) but signed for the principal by the agent.  Hence in this case the complainant was Mr Brown.

19. [19]
    There is some restriction in s 51 of the Justices Act which provides that the complaint in writing must be on oath, which oath may be made by the complainant, when it is intended to issue a warrant in the first instance against the party charged, but even there the oath is not required to be made by the complainant personally, and no oath is required where it is intended to issue a summons in the first instance, as occurred here.^[8] 

20. [20]
    There is authority that a corporation, indeed a local authority, can be a complainant in its own name under the Justices Act:  Barcaldine Shire Council v Spence [1944] St R Qd 18.  In that case the complaint was brought by the Council as an electricity authority alleging a breach of the Electric Light & Power Act 1896.  The complaint was laid in the name of the Council and signed in its name by a person admitted to be its solicitor:  p. 22.  Philp J delivering the judgement of the court noted that under the Local Government Act 1936 the Council was a body corporate capable of suing and doing such other acts as body corporates may do.  His Honour said at p. 23:

“We see no reason to suppose the legislature intended to define the word ‘complainant’ to natural persons.  The Council is given express statutory authority to sue in its own name and so prima facie may become a complainant.  Section 42 permits a complaint to be laid ‘in person’ – a thing which a corporation cannot do – but it also permits a complainant to lay it by ‘his solicitor’.  It seems to us that the legislature must have intended the word ‘his’ to include the word ‘its’ when the complainant is a corporation.   …  In our view, then, generally speaking, a corporation may make and lay a complaint under the Justices Act by its solicitor.”

21. [21]
    As far as I am aware that decision has never been overruled. If anything it has been confirmed by the later substitution of “the complaint an” for “his”. The decision was distinguished by the Full Court in R v Latham; ex parte Issell [1988] 1 Qd R 167.  There is however nothing in the reasons in that case to cast any doubt on the earlier decision.  Matthews J at p. 169 said:

“During the course of argument I referred to a practice that was common when I was at the Bar, and I think it was a perfectly proper practice, that local authorities often laid complaints in their own names but by their clerks.”

22. [22]
    Thomas J said on the same page:

“Whilst it is good practice for a complaint to be laid in the name of the Council by its clerk, it is equally lawful for the clerk in his own name to bring the litigation as he has done in the present case.”

23. [23]
    Reference was made in that decision to s 52(7) of the Local Government Act 1936-1955 which provided:

1. (i)
   The local authority may appear before any court or in any legal proceedings by its clerk or by any officer authorised generally or in respect of any special proceeding by writing under the hand of the chairman;  and the clerk or any officer so authorised may institute and carry on any proceeding which the local authority is authorised to institute or carry on under this Act.

2. (ii)
   The clerk or other officer authorised as last aforesaid shall be reimbursed all damages, costs, charges, and expenses to which he may be put or with which he may become chargeable.”

24. [24]
    In that case the Full Court was considering a proceeding in the Magistrates Court instituted by a complaint “of Robert Henry Brown, Town Clerk of the Council of the City of the Gold Coast, a local authority having its principal office at … being a person duly authorised by the Gold Coast City Council ….” The point was taken that no authorisation of the agent by the Council was in evidence, a point also sought to be taken by counsel for the appellant before me in respect of Mr Brown’s authorisation by the Brisbane City Council. That argument failed in that case on the basis of earlier authority, Lawrence v Martin [1928] 2 KB 454,^[9] that the town clerk was authorised by virtue of his office and no special authority needed to be given or proved.  Thomas J said that the words in the complaint “duly authorised” were superfluous.  For present purposes however, the significance of that decision is that it distinguished between a complaint in the name of the council and a complaint in the name of the clerk, although it was said that the effect of s 52 of the Local Government Act 1936 was that the council could take a proceeding in either way.

25. [25]
    The current wording of the equivalent provision, s 1111 of the Local Government Act 1993, is perhaps in more restrictive terms:

“(1) In a legal proceeding, the chief executive officer of a local government or other employee authorised in writing by the local government –

1. (a)
   may give instructions and act as authorised agent for the local government;  and

2. (b)
   may sign all documents for the local government;

3. (2)
   A local government must pay the costs incurred by the chief executive officer or other employee of the local government in a legal proceeding.”

26. [26]
    That empowers the chief executive officer of the local government, by virtue of that office, or other authorised employee to give instructions, sign documents and act as authorised agent “for the local government”, but I think it is more difficult to spell out from the wording of that section a power in someone to take proceedings in his own name on behalf of the local government. Of course the present respondent was not the chief executive officer, and the appellant’s point is that it was necessary for him to be authorised in writing by the local government, which had not been proved.

27. [27]
    But that does not go to the question of standing, if Mr Brown has standing under the Act. The submission on behalf of the appellant assumes that a proceeding brought on behalf of a local authority, whether under the authority of s 1111 of the Local Government Act or otherwise, is a proceeding brought by the local authority for the purpose of s 4.3.18.  I do not think that is the case.  The authorities to which I have referred clearly distinguish between a complaint brought by the local authority in its own name and a complaint brought by a clerk, or another authorised person, on behalf of the local authority.  In general therefore a local authority can lay a complaint in its own name (by a lawyer or authorised person) or an appropriate employee can lay the complaint in his or her name but on its behalf.  In the alternative, the employee can lay the complaint on his or her own behalf.  When the complaint is under a particular Act, it will be necessary to see if there is any restriction in that Act as to who may lay a complaint, but in the absence of any restriction, any of those methods may be used, and it is unnecessary for an employee who is the complainant to prove the existence of any authority from the local authority, in order to show standing to prosecute.^[10] 

28. [28]
    On the other hand, commonly in the situation referred to in the authorities only the local authority or a person authorised by it had standing to bring a complaint, because of the provisions of the applicable Act. Where there is a specific provision in an Act imposing a restriction on who has standing to bring a proceeding in a Magistrates Court to prosecute a person for an offence under that Act, that specific provision must be complied with, and it is necessary to prove that it has been complied with, unless that is self-evident.^[11]  There may however be an evidentiary provision, such as the provisions of the Brisbane City Council Ordinances considered below, which modifies this requirement. 

29. [29]
    That is not the situation in relation to any offence under Part 3 of the Act, other than offences within the scope of subsection (3), because any person may bring a proceeding in respect of those offences, and that obviously includes any officer of a local authority.  In such a situation the question of authorisation may be relevant for other purposes, on one of which I will touch shortly, but is irrelevant to the question of standing to bring the proceeding under the Act.  There was therefore no need to prove any such authorisation for that purpose.

30. [30]
    If the complaint alleged an offence within subsection (3), that subsection as I construe it means that the proceeding may be brought only by the assessing authority, that is, relevantly, the local authority.  It seems to me that this specific provision overrides the general provision in the Local Government Act, and therefore, where subsection (3) applies and the local authority is the assessing authority, the proceedings must be brought in its name.  If the local government is the complainant, the complaint may be signed “for the local government” by the chief executive officer or the employee authorised in writing, or by a lawyer, so as to satisfy the requirements of s 42 of the Justices Act:  s 1111.

31. [31]
    That construction would be consistent with the provisions of s 4.4.4 of the Act, which provides:

“(1) This section applies if –

1. (a)
   the assessing authority by which the administration and enforcement of a matter is carried out is a local government;  and

2. (b)
   a proceeding for an offence about the matter is taken by the local government;  and

3. (c)
   a court imposes a fine for the offence.

2. (2)
   The fine must be paid to the local government.”

32. [32]
    That would apply to a proceeding brought by a local government for an offence within the scope of s 4.3.18(3), or indeed a proceeding brought by a local government for any other offence against Part 3 of the Act. But it seems to me that the proceeding has to be “taken by the local government”. Since the local government can take a proceeding, that is, be the complainant in the proceeding in its own name, as established by the authorities referred to earlier, it seems to follow that that is the situation in which the section applies. On the other hand it is not obvious that it applies to the proceeding taken in the present case, which was not taken by the local authority, but taken by Mr Brown, albeit in his capacity as an officer of the local authority. The section does not say “by or on behalf of” the local government.

A complaint by a public officer

33. [33]
    There are practical reasons why a complaint would be brought by an officer of the local authority rather than the local authority itself, notwithstanding any difficulty that might cause with provisions such as s 4.4.4.  The Justices Act contains in s 142A a mechanism by which, if a defendant does not appear in response to a summons, the court may act on the basis of the allegations in the complaint without requiring evidence on oath to establish those allegations, but only if the complaint is of a simple offence or breach of duty made by a public officer or a police officer.  A “public officer” for the purposes of this section includes “an officer or employee of a local government”:  s 4.  This avoids the necessity otherwise imposed by s 142 for the court to hear and determine the case as if the defendant had appeared.  In other words, where s 142A does not apply the complainant must call evidence to prove the charge alleged in the complaint.  Curiously, and perhaps anomalously, a complaint by an officer of a local authority can take advantage of the convenient mechanism provided in s 142A, but a complaint by a local authority in its own name cannot. 

34. [34]
    In addition, where the complaint is made by an officer of the local authority the complainant has the benefit of the protection afforded by s 158A in relation to any order for costs against the complainant, a provision which is obviously intended to restrict or discourage the making of an order for costs against the complainant if the complaint is dismissed. Again, perhaps anomalously, s 158A applies where the complainant is an officer of the local authority, but not if the proceeding is taken in the name of the local authority itself. 

35. [35]
    The existence of these provisions and the advantage they confer explain why the complainant in the present case would go to the trouble of expressly alleging that he was an employee of the Brisbane City Council, and was a public officer for the purposes of the Justices Act.  These allegations are not to establish standing for the purposes of the Act, or to allege any reliance on the mechanism in s 1111 of the Local Government Act, but are there in order to activate the provisions of the Justices Act which apply to complaints by a public officer.

36. [36]
    The respondent relied on certain provisions of the City of Brisbane Ordinances. Ordinance 2 of Chapter 2 of Part 4 provides as follows:  “Summary proceedings for the recovery of any penalties or money payable in respect of any offence against … [any Act] … may be instituted by the council under the Justices Act 1886-1980 by the complaints of the town clerk or any officer of the council authorised generally or in respect of any special proceeding by writing under the hand of the mayor.”  That would appear to be consistent with the terms of the former s 52(7) of the Local Government Act 1936 referred to earlier, and the interpretation of that provision in the authorities to which I have referred.  It is also consistent with the scheme of the Justices Act, by which a complaint may be made by the complainant by an authorised agent.  This provision could be seen as authorising the town clerk or any other duly authorised officer of the council to be the authorised agent for the purpose of taking a proceeding instituted by the council under the Justices Act.  Alternatively, it may be seen as a source of authority (if it is needed, and in the present case in my opinion it is not) for such a person to be the complainant in his or her own name, as contemplated in R v Latham (supra). 

37. [37]
    In my opinion however this provision does not have the effect of converting a complaint in the name of an officer of the council into a complaint in the name of the council for the purposes of the Justices Act, or other legislation.  The question of who is the complainant for the purposes of a proceeding under the Justices Act will ordinarily be a matter to be determined by reference to the construction of the Justices Act, and that is not something which can be modified by the operation of subordinate legislation, such as the Brisbane City Council Ordinances.  Any restriction on the identity of who may bring proceedings imposed by s 4.3.18 of the Act cannot be modified in its operation by the terms of the ordinances, nor are they relevant matters to consider in the interpretation of that section of the Act.^[12]  This provision cannot convert a complaint in the name of an officer of the council into a complaint in the name of the council for the purposes of either the Act or the Justices Act.

38. [38]
    The respondent submitted that a complaint brought in the name of the council officer “for and on behalf of” the council could be seen as a proceeding “brought by the assessing authority” for the purposes of s 4.3.18(3).  That, it seems to me, is not consistent with the distinction drawn in the authorities between a proceeding brought by (ie in the name of) the local authority and a proceeding brought by (in the name of) some authorised officer.  The matter is complicated because the Justices Act speaks of a complaint being brought by an authorised agent, and the authorities show that this refers to a situation where the complaint is brought by the agent but in the name of the principal, not a complaint in the name of the agent.^[13]  Ultimately however, for reasons I shall give shortly, it is not necessary for me to decide whether that is the case, because in my opinion none of these complaints were for an offence which fell within s 4.3.18(3) of the Act.

Were these offences within s 4.3.18(3)?

39. [39]
    If the true construction of subsection (3) is that proceedings for the offences under the sections nominated can be brought only by the assessing authority, it is sufficient for the respondent to show that this was not a proceeding for an offence within ss (3). In the case of counts 2 and 3 which alleged breaches of s 4.3.5, there is no difficulty.  But count 1 alleged an offence under s 4.3.1.  However, the respondent submitted that the words “about the Standard Building Regulation” in paragraph (a) applied to all three of the sections referred to in that paragraph, not just the third mentioned, and that the particular breach of s 4.3.1 alleged was not one “about the Standard Building Regulation” and therefore subsection (3) did not apply. 

40. [40]
    It is not immediately obvious, from any of those three sections, how there could be an offence under any of them which might be described as “about the Standard Building Regulation”. That expression is quite vague, but it could I suppose mean an offence constituted by a breach of that section where the offending conduct relied on was a failure to comply with some requirement of the Standard Building Regulation. It is not obvious to me that this would be possible in respect of any or all of these sections, but counsel for the respondent assured me that it was and that there was no difference between the sections in this respect. The contrary was not argued specifically on behalf of the appellant. Such interpretation would be consistent with ordinary principles of statutory construction and the intended purpose of the subsection as identified in the explanatory memorandum quoted earlier. I therefore consider that on the true construction of paragraph (a) the words “about the Standard Building Regulation” apply to each of the sections listed.

41. [41]
    It was submitted on behalf of the respondent, and not disputed on behalf of the appellant, that none of the charges in the present complaint were about the Standard Building Regulation, and certainly I cannot see how the Standard Building Regulation has anything to do with any of them. It follows that the breach of s 4.3.1 alleged against the appellant in the complaint was not one which alleged an offence under that section “about the Standard Building Regulation” and therefore was not an offence proceedings for which might be brought only by the assessing authority, that is the local government. The subsection therefore did not deprive Mr Brown of standing to prosecute count 1. Mr Brown had standing under s 4.3.18(1) and it was not necessary in order to prove the offence charged for him to prove either that he was an employee of the Brisbane City Council or that he was authorised by it to bring the proceeding or that he was acting on its behalf. It follows that there would be no point in allowing the appellant to add the ground sought to be raised on the hearing of the appeal, that such proof was lacking. It also follows that grounds 1 and 2 in the notice of appeal are not made out.

Consent under s 4.3.19

42. [42]
    The appellant submitted that a matter crucial to the legality of the prosecution was s 4.3.19(2) of the Act.  Section 4.3.19 provides:

1. “(1)
   A proceeding under s 4.3.18 may be brought by the person on their own behalf or in a representative capacity.

2. (2)
   However, if the proceeding is brought in a representative capacity, one of the following consents must be obtained –

1. (a)
   if the proceeding is brought on behalf of a body of persons or a corporation – the members of the governing body;

2. (b)
   if the proceeding is brought on behalf of an individual – the individual.”

43. [43]
    It was submitted that this was a proceeding brought on behalf of a corporation, namely the Brisbane City Council,^[14] and therefore it was necessary for the prosecution to have the consent of the members of the governing body.  The complaint alleged that it was brought “for and on behalf of the [Brisbane City] Council.”  If that means that it was brought in a representative capacity for the purposes of this section, it follows that it was mandatory to obtain, and therefore the appellant submits to prove, the consent of the members of the governing body of the Council.  It is not unusual for a prosecution to require the consent of someone specified in the Act constituting the offence.^[15]  The consent must be given prior to the commencement of the proceeding, that is, before the complaint is laid before the justice.^[16]  It is commonly endorsed on the complaint form, and it is sufficient to express consent to the prosecution of that complaint, although that would not amount to consent of any variation of the complaint which introduced any substantial difference.^[17]

44. [44]
    Ordinance 2 Part 8 Chapter 4 provides:  “In any proceedings by or on behalf of the council for a breach of the town plan or an ordinance, by-law, regulation, or statute, the due appointment of all officers of the council, and the authority of any officer to do any act or to institute the proceedings, shall be presumed until the contrary is proved.”  That would have the effect that it would be presumed in the proceeding that the respondent was duly appointed as an officer of the council, and that the respondent had authority to institute the proceeding.  Of course the authority referred to there is the authority of the Council.  If the Act required relevantly that the prosecution be by a person authorised by the council to bring such prosecution, this section would have the effect that such authorisation was presumed unless the contrary were proved.  It may remove the need to lead evidence that the complainant has standing to bring a particular proceeding, if that is the subject of any restriction, but here it is not.  But for present purposes, it does not go far enough, because the requirement of s 4.3.19(2) is that a consent must be obtained for the proceeding, and this provision does not provide any presumption of consent.  There is a significant difference between authority and consent.^[18] 

45. [45]
    Ordinance 6 in the same part was also relied on. This provides: “In any prosecution for a breach of the provisions of any ordinance or of the town plan every allegation or averment contained in the complaint shall be prima facie evidence of the matter so alleged or averred” Assuming that the present offences are breaches of the provisions of the town plan, the difficulty with relying on that provision is that there is no averment or allegation in the complaint that the council has consented to the proceeding being brought.

46. [46]
    On the face of it therefore, if the present proceeding was one brought in a representative capacity for the purposes of s 4.3.19, it was necessary to obtain the consent of members of the governing body of the Brisbane City Council to the prosecution.  Was this a prosecution brought in a representative capacity?  It was a complaint by Mr Bowman, in his own capacity as an officer of the council but expressly “for and on behalf of” the Brisbane City Council.  He had standing himself to bring the complaint because of s 4.3.18(1).  He had, or at least is presumed to have had in the absence of evidence to the contrary, the authority of the council to take the proceeding, and he was taking the proceeding in his capacity as a public officer of the council, no doubt for the reasons already indicated.  But that does not necessarily mean that he was not taking the proceeding in a representative capacity in the sense in which I think that expression is used in s 4.3.18. 

47. [47]
    The crucial question therefore is, what is meant by “in a representative capacity” in s 4.3.19(1) of the Act?  It is difficult to know what, if anything, the legislature had in mind when enacting this section.  The explanatory note is, typically, entirely unhelpful.  Section 4.4.1 of the Act provides for the offence to be prosecuted in a summary way under the Justices Act 1886, and that Act contains no reference to a proceeding in a representative capacity.  That would not prevent this Act from grafting such a mechanism onto the procedure in the Justices Act, but it does mean there is no established meaning for this concept in that context.  In some other contexts, particular meanings are established.  When a civil proceeding is taken by a party, or is brought against the party, in a representative capacity, that must be stated on the originating process:  UCPR r. 18.  That can apply to a person suing as the representative of an estate of a deceased person, that is as an executor or administrator.^[19]  Plainly however s 4.3.19 does not use the expression in this sense;  it would be absurd to require the consent of the person represented in that situation, because the person represented is dead. 

48. [48]
    Another sense in which it is used in civil proceedings is where there are numerous persons suing or being sued, and one person sues or is sued on behalf of them all: UCPR r 75.  The position here is different from the position of a representative party in civil proceedings where that party and other persons represented have the same interest.^[20]  That is not I think the situation contemplated here.  A person who is bringing proceedings as a trustee,^[21] or a liquidator, or a receiver or manager,^[22] and is pursuing a cause of action vested in him in that capacity, may be said to be bringing proceedings in a representative capacity, but again there is commonly no person or corporation represented who could be responsible for giving consent, so again presumably that is not what was intended here.  Civil proceedings may be conducted or defended by a litigation guardian on behalf of a person under a legal incapacity under UCPR r 93.  Again, presumably the section is not intended to apply in that sort of situation, because commonly a person under a legal incapacity would not be able to give consent, or at least give effective consent, as required by the section. 

49. [49]
    It can hardly have been the intention that the section apply in circumstances where a proceeding is commenced by a lawyer on behalf of a client who is the complainant; in that situation a proceeding is brought by the complainant, acting through the lawyer, and it could not have been intended that this section would interfere with the ordinary rules governing the conduct of proceedings by a lawyer on behalf of a client, and impose a specific additional requirement for written consent of the client. I do not think that that is the situation covered by the section.

50. [50]
    It is therefore easy enough to say that there are a number of situations where the section does not apply. It is not easy however to detect any particular situation in which the section is apt. The matter is not made any easier by the existence of a section in essentially identical terms in relation to a proceeding in the Planning and Environment Court for an enforcement order under s 4.3.22:  see s 4.3.23.  The whole thing is a mystery, and it seems to me frankly that the most plausible explanation for the presence of this section in the statute is that it was a mistake by whoever was responsible for drafting it.  Unfortunately, that does not mean that it is not part of the law.  It may well encourage a narrow or limited construction of the section, but I cannot simply ignore it or proceed on the basis that, whatever it means, it does not mean something which is relevant in the present case. 

51. [51]
    If the appellant’s argument is correct and s 4.3.19 is to be construed so that any complaint by a public officer of a local authority on behalf of the local authority is treated as being a proceeding in a representative capacity, it would mean that there would have to be a consent for every such prosecution by the members of the council (presumably by majority).  It is certainly difficult to believe that the legislature intended that, on every occasion when there was a prosecution for an offence under Part 3 of Chapter 4 of the Act by a public officer on behalf of a local authority, it would be necessary for the members of the local authority to consent to the bringing of the proceeding.  That is obviously an inconvenient situation, particularly in the light of the common and well established practice for many years prior to 1997 for proceedings to be brought in respect of offences by officers of local authorities “on behalf of” the local authority.^[23]  Such a requirement would not appear to serve any useful purpose, bearing in mind that the appropriate officer can take the proceeding in the name of the council without any such consent, and that he or she can also bring any such proceeding as an individual without such consent.

52. [52]
    Reluctantly, however, I find it unavoidable that where a person makes a complaint “for and on behalf of” a local authority, that person is bringing the proceeding in a representative capacity, in accordance with the ordinary meaning of that expression. The only meaning I can attribute to that expression is that it is intended to deal with the situation where the proceeding is brought in form in the name of the representative, but in substance by the person or persons represented. Perhaps the most plausible competing meaning would be if one complainant was taking proceedings as a representative of a larger body of persons, but the section is expressed to include “an individual” or “a corporation”, and although the singular would include the plural, it would not be a reasonable construction of the section to interpret it as excluding the singular. On the face of it the section assumes that person A can bring the proceeding simply as a representative of person (individual or corporation) B. Reluctantly I feel I am unable to attribute to the section any meaning other than that it applies in circumstances where the complainant makes the complaint on behalf of someone else, including a local authority, and it follows that in the present case the complainant, Mr Brown, who alleged expressly in the complaint that that was what he was doing, made the complaint “in a representative capacity” for the purposes of s 4.3.19 of the Act.

53. [53]
    It follows that the consent of the members of the governing body of the Brisbane City Council, that is the councillors, had to be obtained to commence the proceeding. Subsection (2) uses the word “must” and is therefore mandatory.  In the present case the consent of the Brisbane City Council was not proved.  It does not, however, follow that it was doomed to fail because of the failure to comply with the section, had the point been taken before the magistrate.  In the first place, if the point had been taken before the magistrate, the complaint would not have been dismissed.  Assuming that the complainant was not in a position to prove the consent of the Brisbane City Council, he could have easily overcome the objection by choosing to proceed on his own behalf, in which case this part of the complaint would have become mere surplusage and irrelevant:  Bergin v Holzaphel; ex parte Holzaphel [1953] St R Qd 167 at 177.^[24] 

54. [54]
    Apart from this, there is authority binding on me that the existence of consent to a prosecution does not have to be proved as part of the prosecution case, at least unless the matter is put in issue, and will be presumed in the absence of evidence to the contrary: Cody v Joseph Pease Pty Ltd; ex parte Joseph Pease Pty Ltd [1945] St R Qd 81 at 91.  The English position to this effect was confirmed in Price v Humphries [1958] 2 QB 353, and although the position is different in New South Wales,^[25] the approach in Cody was confirmed by the Full Court in Dever v Creevey; ex parte Creevey [1993] 1 Qd R 232, and remains the law in Queensland.  Because the consent is not an element of the offence, it need not be proved unless the issue is raised by the defence, although if the issue is raised it must be proved.  If the point is raised after the close of the prosecution case, leave will ordinarily be given to reopen to allow proof of the consent.^[26] 

55. [55]
    Accordingly the point is one which, had it been taken at the trial, could easily have been overcome by the respondent, either by proof of the requisite consent or by electing to proceed on his own behalf. But the point was not taken at the trial. It is well established that the appellant is not entitled to take the point for the first time on appeal.^[27]  It follows that the appeal cannot succeed on this ground.

Ground 3 and Ground 8

56. [56]
    Ground 3 is that the respondent failed to prove beyond reasonable doubt that the work undertaken by the appellant was not an unlawful act. I take it that this is intended to allege that the evidence before the magistrate was not capable of sustaining a conviction in respect of the charges, and in that respect is similar to the ground relied on in count 8, that the conviction was against the evidence and the weight of the evidence and it would be unsafe to allow the conviction to stand.  These grounds essentially raise the question of whether on the whole of the evidence it was open to the magistrate to be satisfied beyond reasonable doubt of the guilt of the appellant:  M v R (1994) 181 CLR 487.  The matter relied on by the appellant was that the digging of a farm dam regardless of size did not amount to an unlawful act.  It was submitted that if prior to the commencement of City Plan 2000 the use of the premises in this way was a lawful use, and there had been no material change of use since the commencement of that plan, it was not unlawful for the use in this way to continue.  The appellant submitted that the use of the land was a lawful use at that time, apparently on the basis that it was a use ancillary to the rural use of grazing livestock on the land.

57. [57]
    Count 1 in the complaint alleged a breach of s 4.3.1, which provides that, “a person must not start assessable development without a development permit for the development.” The “assessable development” was alleged to be “operational work”, namely excavation and filling. By s 1.3.5, “operational work” is defined to mean, inter alia, “excavation or filling that materially effects premises or their use”. Starting this operational work was alleged to involve starting an assessable development. The issue here therefore was whether the appellant was engaged in excavating or filling the land which materially affected the land.

58. [58]
    Although the appellant argued before the magistrate, and indeed before me, that relevantly all he was doing was constructing or maintaining a farm dam, which was a lawful use given the zoning of the land, there was no evidence given by the appellant or any witnesses in support of this proposition at the trial. The appellant had however previously made this claim to at least one of the council officers who was called as a witness, so there was evidence before the magistrate that the appellant was claiming that his activities were lawful in this way. Essentially however the issue was whether the respondent had proved that the premises were being used in the way alleged by the complainant during the relevant period, which necessarily involved rejecting as incorrect the characterisation alleged by the appellant.

59. [59]
    The magistrate accepted the evidence of the respondent’s witnesses. Generally that assessment was not challenged on appeal, but in respect of one of the witnesses, Mr Lee, it was submitted that the effect of the cross-examination was such that he had ceased to be a credible witness, that is, any acceptance of his evidence as reliable was unjustified and contrary to the weight of the evidence.^[28]  It was also submitted that some evidence had been improperly admitted, when in truth it was irrelevant to the matters before the court.  It is therefore necessary for me to consider just what evidence there was before the magistrate that was relevant and capable of being accepted, and whether in the light of the evidence he was justified in accepting the evidence of Mr Lee. 

Summary of the evidence

60. [60]
    The principal evidence on behalf of the respondent was given by Mr Kenny, a development compliance officer: p. 71. He said he had been to the land on a number of occasions since October 1989, and on the earlier visits he went on to the land, and a large number of photographs taken by him at different times were put in evidence. He also referred to an aerial photograph of the site, Exhibit 19, and observations he had made on the site when he had been there earlier, from October 1989.  He said that at that time there were two dams on the site, which were adjacent;  the appellant had claimed to be de-silting one and digging the other:  p. 79.  There were piles of material there at that time as well.  At that time there were a couple of draglines there and other machines:  p. 82.  In July 2000 he had visited the site and seen trucks loading there;  he had followed one and it unloaded onto the floor of the Brisbane Entertainment Centre:  p. 89.  He took some photographs, Exhibit 10:  p. 90.

61. [61]
    In relation to the period the subject of the charge, he said that on 4 January 2001 he had visited the site and taken the photographs in Exhibit 12:  pp. 91-2.  He said that at that time there was a screening machine on site.  He said that over a week in March 2001 he had made a number of observations of the property.  On 16 March 2001 at 8.45am there were three draglines there, together with a screening machine, a small dumpy, an end loader, and a grader end loader:  p. 103.  The two draglines were working.  Later in that morning there was a dragline working, an end loader feeding the screening machine, and a truck which was loaded and driven off, and followed to the premises of East Coast Gravel:  p. 105.  The truck subsequently returned to the land.  A number of photographs taken during this period became Exhibit 16. 

62. [62]
    On 19 March there was an end loader shifting material on the site, and a number of trucks there;  one which was loaded on the site was followed to East Coast Gravel:  p. 106.  On 20 March there were a number of trucks and other machinery there, a dragline was working, and he followed a truck which had been loaded to East Coast Gravel:  p. 107.  Similar things occurred on 21 March.  He was there as well in the period 4 to 17 April, and took a number of photographs, Exhibit 18:  p. 110.  He said that during the period from March to May 2001 the various mounds of material on the site as shown in the photographs were sometimes larger and sometimes smaller:  p. 116.  He identified the material in the mounds as being sand and gravel rather than just dirt:  p. 128.  There were always stockpiles of material there:  p. 111.

63. [63]
    A number of transcripts of conversations with the appellant also went into evidence: Exhibit 13, a conversation in December 1998:  pp. 94-5;  Exhibit 14, a conversation in October 2000:  pp. 95-6;  Exhibit 17, a telephone conversation with the appellant on 21 March 2001:  pp. 107-8.  In these conversations the appellant had consistently claimed that he was only building and maintaining farm dams on the property.

64. [64]
    There was also evidence from Mr Kenny that he had seen animals on the property, but that he had never seen more than 40 there, apart from any which had been penned up which he had not seen: p. 76. He had been told that there were also animals kept in pens: p. 78.

65. [65]
    There was evidence from a director of East Coast Gravel that he had from time to time obtained material from the appellant: p. 27. He produced four invoices for material supplied between the end of February 2001 and May 2001: p. 28. He said that he had also sold him some material on occasions: p. 30. Under cross-examination, he described the appellant’s land as “just a big gravel pit”, and later referred to there being sand on the property: pp. 36-7. Mr Leary, a Brisbane City Council town planner, gave evidence of a development application made in 1985 which was refused in January 1986: Exhibit 4, pp. 51-3.  There was a further application in January 2001 concerning extracting river sand:  Exhibit 5.  This was an application which should have been made to the Environmental Protection Authority.  An officer from that authority, Ms Halliday, gave evidence that the appellant had obtained in 1998 a licence for dredging, which was still current:  Exhibit 6, pp. 67-9.

66. [66]
    The other evidence was that of Mr Lee, who described himself as an environmental manager: p. 146. He had seen the site from the outside, and seen photographs of it. He had had some experience in relation to the design and construction of dams, and other water bodies, including in particular dams used in conjunction with environmental protection work. He expressed the opinion that the dams on this property were far larger than would be usual for a farm dam for a property of that size: p. 153. He also said that ordinarily a dam of that size would take about four to six weeks to construct, and would need a couple of days maintenance for de-silting about every five to twenty years: p. 157. The dams in his opinion were in the wrong place on the property for farm dams; they were in a flood prone area, and because they were close to the river the water would be relatively salty: p. 148. In addition they were constructed in gravely soil, which was unsuitable: p. 150. The banks of the dam that he saw on the site appeared to be quite unstable: p. 168.

67. [67]
    In 1994 he had been involved with the drilling of a number of boreholes on the site including on the floodplain, and the water in the boreholes in the floodplain was too saline for irrigation: pp. 189-91. He said that because of the proximity of the river, and the location of the dam within the floodplain, and because the water table there was relatively high, groundwater would tend to run into the dam rather than water tend to leak out of the dam: p. 211. The effect of his evidence was that the hole would contain relatively saline groundwater rather than fresh water suitable for stock to drink.

68. [68]
    None of Mr Lee’s evidence itself was conclusive of the proposition that what was constructed here was essentially an exercise in extractive industry rather than an attempt, perhaps misguided or incompetent, to construct dams for use to obtain a water supply for irrigation or watering stock. The land is currently zoned rural, and therefore constructing and maintaining a dam to irrigate the property and to water stock would be a lawful use. In order to show the offences had been committed, it was necessary for the complainant to prove that the appellant was doing the various things alleged in the complaint, rather than building and maintaining farm dams for those purposes.

69. [69]
    The evidence of Mr Lee was really directed to the proposition that what had been constructed here was implausible as a farm dam. That would not in itself have been sufficient to exclude as an alternative hypothesis that it was a misguided and incompetently constructed farm dam,^[29] but it was suggestive, and was in my opinion of some appropriate value when taken in conjunction with the other evidence, particularly the evidence of Mr Kenny of his observations of activity on the site, and photographs tendered through him, which shows something which looks far more like a sand and gravel processing depot than a dam on a farm.

Intention of the appellant

70. [70]
    It was not disputed by the respondent that the property, being rural property, could be lawfully used to keep livestock, and that any use incidental and necessarily associated with the use of the premises for that purpose was also a lawful use in view of the definition of “use” in Schedule 10.^[30]  Hence the provision of a farm dam for the watering of livestock was conceded to be a lawful use:  p. 217.  However, it was submitted that what the appellant was doing on the land went further than this, and involved the excavation of the land in a way that amounted to the operation of extractive industry, and in addition the excavation and filling of the land in a way which was preparatory to the use of the land as an aquatic park, and which materially affected the land. 

71. [71]
    The respondent submitted, in my opinion correctly, that there could be more than one use of land at any particular time, and that what the evidence showed was that the appellant was during the relevant period using the land in three ways: p. 225. These included the presence of a rural dam on the site which was a lawful activity, but in addition the appellant was using the premises for an extractive industry as demonstrated by the scale and duration of the work on the land, and was doing preparatory works for an aquatic park which he intended to construct on the land. For this purpose, the respondent relied on evidence of an earlier development application which had been made by the appellant in 1985 (Exhibit 4) which had been rejected in January 1986:  p. 53.  The respondent also relied on statements made in the course of the interviews by the appellant that he was still intending to use the land for that purpose and, significantly, was doing work on the land, in particular construction of the levee bank, with a view to the implementation of that plan. 

72. [72]
    In December 1998 Mr Kenny had been on the site and had a conversation with the appellant: pp. 94-5. He made notes of the conversation at the time, and produced at the trial a typed transcript of those notes: Exhibit 13.  Early in the conversation Mr Kenny confirmed that he had permission to come onto the property and warned the appellant that information obtained might be used in court.  The appellant had claimed that he could defend what he was doing on the land.  On the occasion of this visit there were two draglines near the dams, one of which was operating, as well as two excavators, one of which was operating.  There were various large mounds of material on the site, including mounds of sand and gravel.  A dragline was excavating material from one of the dams and dumping it on the northern bank.  In the course of their conversation the appellant claimed that the dam was in the same area that it had been previously. 

73. [73]
    The appellant referred to the permit applied for in the mid 1980s and said: “I am still going to do it. That’s my intention.” He said he was going to apply for an extractive permit from the council if he came out of the existing dam area to build the aquatic park, but he hadn’t come out of the original boundaries of the dam yet so he did not have to. He also claimed to be “reclaiming” levee banks that had been previously lost, using clay for the walls. Truckloads of material were coming onto the site, evidently in large quantities. It was put to the appellant that there were 25,000 cubic metres of material from a particular building site, and his response was that he “didn’t get all of that”.  He said that activity started eight months ago.  When asked whether the walls and levee banks were to protect or were part of the proposed aquatic park he said “yes”.  Mr Kenny referred to sand and gravel having been taken out and material being brought in to build levee banks etc, and the response was:  “ I used the good clay for that.  I’ll stay within the dam area but the moment I do come out I will be applying for a permit on those grounds.  When I apply for that permit I am going to have all this ready to say this is what I’ve done.”  At one stage he agreed with the proposition that the material being introduced was not to fill up the water bodies but to fill up the levee bank and to prepare the water bodies by walls and battering for the aquatic park.  When asked what his timelines were he said it would take six years, that he owned all the gear and that he would be doing it himself.

74. [74]
    Mr Kenny had a further conversation with the appellant in October 2000; a transcript of his notes became Exhibit 14:  pp.95-6.^[31]  In the course of this conversation Mr Kenny put to the appellant that in December 1998 he had advised Mr Kenny that he was preparing the area for an aquatic park proposal and that the excavation that he was doing was still within the confines of the dam, and the appellant expressed his agreement with that position.  He subsequently said:  “I am going ahead with the aquatic park to include the cable skis, the golf driving range over water, the railway line but I am also still digging my dam.”  The clear inference from this is that the appellant was at the time continuing to do work in order to implement the construction of the proposed aquatic park, but believed that so long as he did not expand the area of the dam he was entitled to continue to do that without further approval from the Brisbane City Council.

75. [75]
    The respondent also relied on a statement in an application made in January 2001, Exhibit 5, which was referred to the Environmental Protection Authority:  p. 54.  Exhibit 5 included a page where the appellant, who made the application, stated:  “I am extracting sand and gravel to contribute towards making the park as shown on the concept plan.  At present this involves enlarging the dam and cleaning it out to also provide water for our stock.  The extracted materials are being screened to provide suitable materials for improving this property and another rural property I have at Rathdowney (which in part contains a licensed abattoir).  Any available topsoil is being used to improve the landscaping, and also towards planting trees, improving grasses etc.”  The concept plan referred to, a copy of which was attached to Exhibit 5, is a concept plan for a proposed theme park, which is obviously not a rural use of the land;  it involves extensive recreational facilities.

76. [76]
    On the basis of this evidence it was submitted on behalf of the respondent that what was actually occurring was that the appellant was, under cover of the proposition that he was constructing and maintaining rural farm dams, actually engaged in altering the area and doing preparatory works for the construction of the aquatic park, which amounted to operational works for the purposes of the Act.^[32]  That may be accepted, and it may well be that the evidence from Mr Kenny, and from the photographs, as to what was occurring on the premises during the relevant periods was sufficient to justify an inference that the position had not changed, and that during that period the work being carried out on the relevant land came within the definition of assessable development, and was operational work of filling and excavation within the meaning of the Act.  So much was found by the magistrate. 

Did the appellant “start” development within the period alleged?

77. [77]
    However, s 4.3.1(1) does not make it an offence to carry on assessable development without a permit, but rather to start assessable development.  No doubt the fact that assessable development is being carried on means that it must have been started at some time, but the complaint charges the appellant with starting it “in the period between 24 January 2001 and 25 May 2001.”  There was no finding to that effect, and indeed it would have been impossible on this evidence to make such a finding, because there was clear evidence that what the appellant was doing by way of assessable development on this land was in progress prior to January 2001.  Indeed the evidence suggests that it had begun by 1998 at the latest.  There was no finding as far as I can see that the appellant started that work during the relevant period.  Unless there is some special meaning of the word “start” in this section, it follows that no offence under this section was committed during the relevant period, and the first charge in the complaint ought to have been dismissed.

78. [78]
    The respondent submitted however that this difficulty could be overcome on either of two bases:

1. (a)
   The word “start” in s 4.3.1 on its true construction means “set up and carry on”, so that it was not something which occurred once for all at the point when the person commenced assessable development, but was something which continued thereafter, presumably as long as the assessable development was being carried out.

2. (b)
   Each particular activity within the overall process of assessable development was itself a matter of assessable development, so that a person would “start assessable development” each time any particular activity in the course of the overall development was commenced.  This argument was taken so far as to suggest that the commencement of work on any given day would itself constitute a “start” of assessable development for the purposes of the Act, although the work formed part of a large project which was already in progress.

79. [79]
    With regard to the former, reference was made to the section heading “carrying out assessable development without permit” which is part of the Act.^[33]  Section 3.1.4 of the Act makes a development permit necessary for assessable development, and s 3.1.5(3) authorises assessable development to occur.  Section 3.5.20(1) provides:  “Development may start when a development permit for the development takes effect.”  Section 3.5.19 indicates when approval takes effect, so that if there is a development permit it would be possible to determine from the Act in the events that have occurred when development may start.  Section 4.3.20, referred to elsewhere, lists various orders which may be made under that section, including one that the defendant “stop development,” and under s 4.3.26 an enforcement order made in the Planning and Environment Court may direct the respondent “to stop an activity that constitutes, or will constitute, a development offence” or “not to start an activity that will constitute a development offence”.

80. [80]
    Reference was also made to the decision in Cramond v Greig (1908) 8 SR (NSW) 143.  In that case it was said by Street J that the word “start” used in a partnership agreement was synonymous with “set up and carry on.”  The case however was a little unusual.  There was a partnership agreement between two real estate agents to carry on business at a particular place, which contained a covenant in restraint of trade, that the defendant would not start the business of house, land and estate agency in Petersham or within a radius of two miles round.  After the partnership had been dissolved the defendant set up as a real estate agent outside the prohibited area, but in the course of that business dealt with property which was within the prohibited area.  It was held that this was a breach of the covenant. 

81. [81]
    There were really two points in that case: whether the covenant was in respect of the location where the defendant could carry on business, or whether it related to the land in respect of which he could carry on business. Counsel for the plaintiff had submitted that the intention was that the defendant should not enter into competition with the plaintiff’s business within the prohibited area. Counsel for the defendant however submitted the covenant restrained the defendant from setting up an office and initiating business but did not include carrying on the business, so that any breach of the covenant had already occurred once and for all when the business was started. If that argument were right, there was no continuing breach of the covenant and nothing from which the defendant could be restrained by an injunction, which was the remedy sought by the plaintiff.

82. [82]
    The reasons which were brief concentrated on the former point, and accepted that the object of the agreement was to secure the plaintiff from interference in his business within the named area, “such area to be a closed preserve for the plaintiff so far as the defendant was concerned” (p. 144). This decision strikes me as a generous interpretation of a restraint of trade clause, but in terms it is an exercise in giving business efficacy to a document drawn up by a layman without the advantage of legal advice. It can I think throw little light on the construction of a term in an act of parliament. I do not regard that approach as applicable here.

83. [83]
    In my opinion it is clear enough from the context in which the word appears in s 4.3.1 that the word “start” was intended to have its ordinary meaning, to begin, originate or set going.  It involves making a change from a situation where something is not occurring to a situation where something is occurring.  It was submitted that such construction would lead to the conclusion that once the commencement of the development had occurred any subsequent acts which amounted to a continuation or carrying out of the development could be engaged in with impunity.  But that is plainly not correct.  If development is being carried out, it follows that it has been started.^[34]  Making the starting of assessable development the offence means that the defendant can be prosecuted whether or not the offence is continuing, but if it is continuing on conviction an order can be made under s 4.3.20 that the defendant “stop” development:  subsection (3)(a).  In the alternative, an application can be made to the Planning and Environment Court for an enforcement order to “stop” the relevant activity, or if there is concern that the person concerned is going to start an assessable development without development permit, an order “not to start an activity that will constitute a development offence”.  Indeed, making the starting of assessable development the event which constitutes the offence means that it would be an offence to start the development prior to the time when the development permit took effect, and that is consistent with s 3.5.20(1).  It seems to me that there is no difficulty caused by this interpretation of s 4.3.1, and that it is entirely consistent with the various sections of the Act which the respondent has referred.  The only indication to the contrary is that the heading to the section uses the expression “carrying out assessable development” rather than “starting assessable development.”

84. [84]
    Furthermore, s 4.3.2A refers to a person “carrying out assessable development” in an appropriate context, indicating that the legislature was quite capable of using that expression in contrast to the form of words in s 4.3.1.  Accordingly it seems to me that there is no difficulty created by giving the word “start” its ordinary meaning.  In the present case of course the difficulty is that the respondent has charged the appellant with starting assessable development within a nominated period when the evidence in the respondent’s case plainly indicated that the assessable development had been started well before that period.  But if the appellant is carrying on assessable development there must have been some point at which he started doing it, and it therefore would have been open to the respondent (at least at some stage) to prosecute the appellant for that starting, alleging that it had occurred at the correct time, or within the relevant period.  In the present case the respondent has alleged that the appellant started some development within a particular period, but proved that he started that development prior to the commencement of that period.  He has therefore failed to prove the offence alleged.

85. [85]
    With regard to the second argument, that in my opinion would be a highly artificial interpretation of the section which gains no support whatever from the context or the surrounding sections, including the sections referred to earlier. It is an interpretation which it seems to me is inconsistent with the terms of s 4.3.6, dealing with development in an emergency.  If the respondent’s interpretation were correct, it would be necessary in order to comply with s 4.3.6(1)(b) for the person to give a whole stream of notices in respect of each part of the work being undertaken, perhaps indeed  each day on which work was undertaken.  That in my opinion would be an absurd construction of the section. 

86. [86]
    There is also the consideration that if one breaks up the development work into small enough parcels it is difficult to see how what was done in any particular bit of the work involves “assessable development” as defined. The part of the definition which is relevant in the present case was that the appellant was undertaking excavating and/or filling which materially affected the subject land, No doubt the whole of the work undertaken by the appellant on this land materially affected it, and indeed the contrary was not submitted on behalf of the appellant. But if the work is broken down into small enough parcels, such as the work done on any particular day, it is difficult to see how anything done on any particular day could materially affect the subject land given the state that it was in as a result of everything that had been done up to the end of the previous day. It may be that not very much needs to be done to pristine land by way of excavation or filling in order materially to affect it. But whatever may be the test of “materially affecting” for the purposes of that definition, I have difficulty in seeing how land which has been used effectively as a sand and gravel depot for some months, or indeed years, is materially affected by the ordinary activities of a sand and gravel depot carried on there on any particular day.

87. [87]
    The argument is also entirely inconsistent with the way in which the respondent ran its case. There was not attempt to demonstrate that there was any particular day or days upon which the appellant “started”, or that in respect of any (or perhaps every) day within the period what had been done had “materially affected” the land. The whole concentration of the respondent’s case at the trial was on the work as a whole. That was appropriate, and is consistent with the correct interpretation of the concept of starting assessable development for the purposes of s 4.3.1.  I do not accept this argument, that the appellant was repeatedly “starting assessable development” within the relevant period.  That in my opinion involves an artificial and unrealistic interpretation of the section, which I reject.

88. [88]
    It follows that I am not persuaded that the section should be construed other than in accordance with its ordinary meaning. Construing it in that way, the appellant failed to prove the offence alleged, and the first charge in the complaint ought to have been dismissed. Although this point was not taken at the trial, I cannot see how the respondent could have met it if it had been taken there. The appeal must be allowed in respect of that count.

89. [89]
    Count 2 alleged a breach of s 4.3.5, which makes it an offence to use premises if the use is not a lawful use. The unlawful use alleged in count 2 was the purpose of extractive industry, by the dredging of gravel for rock, soil and/or sand. It was not disputed that use of the land for the purpose of extractive industry was unlawful at the material time, the issues being what the appellant did, and whether it was done for the alleged unlawful use, or in the course of and for the purpose of a lawful use of the land. The land was at the relevant time zoned “rural”, and could therefore be lawfully used for, relevantly, grazing cattle. The appellant’s argument was that what he was doing was building or maintaining a dam on part of the premises, which was to function as a water supply source for cattle or horses which were on the property.

90. [90]
    In relation to this count, the crucial issue was whether the respondent had shown beyond reasonable doubt that what the appellant was doing amounted to extractive industry, by the dredging of gravel rock soil and/or sand, rather than the mere construction and maintenance of a farm dam. The magistrate found that it did, and in my opinion on the evidence he was amply justified in that conclusion. In relation to this offence, it is the use of the premises during that period in this way which is made an offence. It is irrelevant whether the premises were used in the same way prior to the period alleged, except insofar as that may touch on the issue of whether the use in question was a lawful use. It was not argued either in the Magistrates Court or before me that the use by the appellant of the land for extractive industry was a lawful use; rather the defence argument was that the land was being used at the relevant time for a different lawful use, a rural use. Accordingly the contentious matter at the hearing was as to whether the prosecution had proved that the property was being used for extractive industry. That conclusion was plainly open and this part of the appeal fails.

91. [91]
    Count 3 alleged another breach of s 4.3.5, in using the premises for the purpose of industry, constituted by the screening or washing of material extracted from the earth. Again the issues were just what the appellant had done during the relevant period by way of screening and/or washing the extracted material, and whether that was a use of the land for the purpose of industry, or whether this was merely an activity incidental to the permissible rural use of the property, for grazing cattle and horses.

92. [92]
    The question here was whether the prosecutor had proved that during the relevant period the appellant was actually screening or washing material extracted from the earth on the site. There was no direct evidence of this, but there was evidence from which it was open to the magistrate to draw the inference beyond reasonable doubt that that was what had been done during the relevant period, given the presence of a screening machine on the site and the evidence of the various activities associated with screening material. On 16 March 2001 for example Mr Kenny saw an end loader feeding material into the screening machine (p. 105) and although he was observing from outside the land and would not have been able to see whether the machine was operating, the magistrate was certainly entitled to draw the inference, as the only reasonable inference open from the evidence, that it was operating during the relevant period. 

93. [93]
    The appellant’s argument in relation to this charge appeared to be the same as in relation to the other charges, namely that he was simply building and maintaining a farm dam, but it is not by any means apparent that screening material in this way is something which may be justified as incidental to and necessarily associated with the use of the premises for grazing livestock.^[35]  In any case, once the magistrate was satisfied that the property was in fact being used for extractive industry during the relevant period, the inference was irresistible that the screening was associated with that use rather than any concurrent rural use.

94. [94]
    In my opinion the evidence before the magistrate was capable of supporting the findings that the magistrate made as to the true nature of the activity being carried on on the land by the appellant. In my opinion those findings were open on the evidence before the magistrate.

Ground 4

95. [95]
    It was submitted that the magistrate failed to give weight to the defence that all the appellant was doing was digging a farm dam. The magistrate in my opinion was entitled to take the view that, in view of the duration and extent of the work being undertaken on this dam, what was being done was far more than just digging and maintaining a farm dam, however incompetently, and that the reason for the duration and extent of the work was that the appellant was in truth extracting, processing and selling sand and gravel from the site. In my opinion it was open to the magistrate to draw that conclusion and to convict the appellant on the evidence before him.

Ground 5

96. [96]
    The appellant sought to rely on s 1.4.1 of the Act on the basis that the use he made of the land was a lawful use prior to the commencement of City Plan 2000, and there had been no material change in the use since its commencement.  However, the evidence was that the land was and had been at all material times rural land, and there was no evidence that either extractive industry or industry in the form of screening and/or washing of material extracted from the earth had ever been a lawful use on that land.^[36]  The defence run at the trial was not that either of these had been lawful uses prior to the commencement of City Plan 2000;  what was contended at the trial was that the appellant was using the land only for permissible rural use.  Had the issue as to some other pre-existing lawful use been raised at the trial, the matter might have been the subject of further evidence on behalf of the respondent;  therefore, this is not an issue which the appellant may raise for the first time on appeal.

Ground 6

97. [97]
    It was submitted that the magistrate was not entitled to accept the evidence of Mr Lee on the basis that he was completely discredited by cross-examination, and did not have any qualifications as to the construction of a farm dam, nor had he done any quantitative or other scientific tests to support his opinion. In my opinion the magistrate was entitled to find that he was qualified to give expert evidence, which was relevant to the question of what was involved in the construction and maintenance of a dam including a farm dam, even in the absence of experience of construction specifically of farm dams. Whether any particular aspect of his evidence had or had not been supported by specific testing was a matter which went to weight in his evidence, but it is not apparent that there was any such reliance by the magistrate on his evidence that any such testing would have been of any great significance.

98. [98]
    In my opinion the evidence of Mr Lee was admissible, and was not significantly shaken in cross-examination. I have read the cross-examination, although much of it is difficult to follow, and parts of the transcript read as though counsel for the appellant was adopting an aggressive style of cross-examination,^[37] which in my opinion is not appropriate when cross-examining an expert witness.  I do not consider that there was anything in the cross-examination which would have prevented the magistrate from accepting the evidence of Mr Lee, in relation to the matters to which I have referred.  Whether or not he did so was a matter for him.  He was in a better position to assess what effect the cross-examination had than I am;  all I can say is that there is nothing to show that the magistrate’s apparent acceptance of Mr Lee’s evidence at paras 8-9 of his reasons was unjustified.

Ground 7

99. [99]
    It was submitted that the magistrate had erred in admitting evidence of events which occurred outside the relevant time period, which was prejudicial to the appellant and of no probative value. The charge alleged certain conduct within a particular time period, and it was relevant for the magistrate to focus ultimately on whether that conduct had been proved within that particular period. However, it is often relevant to lead evidence as to what has occurred before (and sometime after) the period the subject of the charge, by way of background, and to show the significance of what is observed during the relevant period. In the present case in my opinion the proposition that there had been extensive work on these dams for some years prior to January 2001 was relevant to considering the argument advanced on behalf of the appellant, that all he was doing was constructing and maintaining farm dams. The extent of the work done suggested strongly that that was not all that he was doing, and it was relevant to prove that that work had been continuing on a large scale over a period of years as part of the process of showing that the appellant was, during the whole of that period, doing more than just constructing and maintaining farm dams. That was in my opinion relevant and admissible in relation to the issue of whether he was, during the relevant period, doing the particular things alleged against him in these charges.

100. [100]
     Apart from this, evidence of statements of intention made prior to the relevant period, orally or in writing, was admissible as evidence of his intention at that time, which supported an inference that his intention had not thereafter changed if subsequent activities on the land were consistent with activities seen to be carried out on the land at a time when he was expressing that intention. Insofar as that intention threw light on the nature of what he was doing on the land, it was in my opinion relevant and admissible. In my opinion there is no substance to this ground in the appeal.

Ground 9

101. [101]
     It was submitted that the orders the magistrate made were not within his jurisdiction pursuant to s 4.3.20 of the Act.  That section is very wide, and the orders made may be in addition to any penalty that the court may otherwise impose:  subsection (2).  There is an express power to make an order to restore premises to the condition the premises were in immediately before development or use of the premises started:  subsection (3)(c).  In my opinion the power to make an order under s 4.3.20 was activated in the present case by the conviction on counts 2 and 3, and none of the orders made by the magistrate on 18 April 2002 were shown to have been outside the power conferred by that section.  The appellant did not address any argument as to how the terms of subsection (1), which on their face are extremely wide, are to be read down.  Presumably only such an order can be made as is reasonably required for the achievement of the purposes of the Act.  But no argument was advanced in relation to this point, or as to how any reading down would have prevented some or all of these orders from being made, and it is therefore unnecessary for me to say anything about that.

Ground 10

102. [102]
     The other issue raised was the question of costs. The costs awarded went beyond the scale of costs laid down in the Justices Regulation 1993, however the magistrate was entitled under s 157 and s 158B of the Justices Act to allow a larger amount of costs in his discretion.  There was certainly some complexity about the matter.  The magistrate said in relation to that simply that the costs in the schedule handed up on behalf of the respondent seemed reasonable to him, but his attention had been drawn to s 158B.  The costs total $28,340.83.  Some of the amounts claimed by way of costs seem large to me, but this is an appeal from an exercise of discretion, and the question is not whether I would allow costs in that amount, but whether the discretion of the magistrate in doing so has been shown to have miscarried.  I am not persuaded that it has.  Nevertheless, the issue of costs has to be reconsidered because the conviction on count 1 has been set aside.

Conclusion

103. [103]
     The magistrate imposed one fine in respect of the three counts. Since I am setting aside the conviction in relation to count 1, it is necessary for me to re-sentence.  The magistrate gave no reasons as to how the quantum of the fine was arrived at, or as to the relative seriousness of count 1 as against the other counts.  The maximum penalty imposed by s 4.3.1 and s 4.3.5 is the same, so I suppose I should not distinguish between the seriousness of the offences, although otherwise I might have been tempted to regard the breach of s 4.3.1 as less serious than a breach of s 4.3.5.  In the present case it seems to have been in a broad sense essentially the same conduct aspects of which were regarded as constituting the three offences, which is I suspect why the magistrate imposed only one penalty.

104. [104]
     It was submitted before the magistrate that this was a serious breach of the town planning regime, an unauthorised use of land which by its very nature was likely to cause some sort of disturbance or disruption to the lives of people in a rural area. The latter point appears to be directed more to counts 2 and 3 than count 1, although there was then reference to visual disturbance which may well have been more directed to count 1.  Reference was made to what was said to be two comparable decisions, neither of which strikes me as being particularly similar to the circumstances in the present case, although no doubt it is difficult to obtain other decisions which are really comparable.  It does not appear that any previous offences were alleged against the appellant.  At one point counsel for the respondent suggested to the magistrate that the usual sort of fine for unlawful use prosecutions was of the order of $4,000 to $7,000.

105. [105]
     It seems to me that the magistrate treated this as a fairly serious example of unlawful use offending. Bearing that in mind and taking into account the various submissions made before the magistrate in relation to the question of penalty, I would substitute a fine of $10,000, in default imprisonment for four months, for the fine imposed by the magistrate. That is one penalty in respect of the two counts which remain.

106. [106]
     An order under s 4.3.20 can be made in respect of any offence under Part 3, and so is available even if the conviction for breach of s 4.3.1 is set aside.  The order is essentially directed to the rehabilitation of the land, and to preventing further unlawful use, and is I consider justified by the circumstances and would have been made even if the magistrate had properly dismissed the complaint in respect of count 1, and convicted only on counts 2 and 3.  I will not interfere with the order which was made under s 4.3.20.

107. [107]
     With regard to the question of costs, I will not interfere with the magistrate’s discretion in relation to the quantification of the respondent’s costs of the prosecution. But in my opinion the order in relation to costs ought to reflect the fact that the prosecution was not entirely successful. Although the matter is not always straightforward in relation to prosecutions for summary offences, broadly speaking if a prosecution is successful the complainant receives an order for costs, and if the prosecution is unsuccessful an order for costs will be made in favour of the successful defendant. Where the prosecution succeeds in part and fails in part, in my opinion the costs order should reflect this mixed outcome, at least to some extent. It is not obvious how any particular part of the costs can be said to be referable either specifically to count 1, or specifically to counts 2 and 3.  It appears that the whole of the respondent’s costs were incurred in prosecuting the three counts, which prosecution ought to have been only partially successful.

108. [108]
     In these circumstances, in my opinion it is not appropriate to order that the appellant pay the respondent the whole of the costs of the prosecution. On the other hand, the respondent was more successful than the appellant before the magistrate, so no costs should be ordered in favour of the appellant, and the appellant ought to be paying part of the respondent’s costs. In all the circumstances, I consider an order that the appellant pay half the respondent’s costs of the proceedings before the magistrate appropriate, and substitute an order that the appellant pay costs in the sum of $14,120.41 in default imprisonment for three months. I am conscious of the fact that that will leave the appellant to bear the whole of his own costs of the proceeding before the magistrate. In other respects the appeal is dismissed.

109. [109]
     With regard to the costs of the appeal, it has been successful in part, but on a point which was not raised by counsel for the appellant, and a number of points which were raised and were unsuccessful would have caused the respondent to incur costs. Accordingly the respondent should not have to pay any part of the appellant’s costs, but because the appeal was ultimately successful to some extent I do not consider it would be just to order the appellant to pay the whole of the respondent’s costs. In all the circumstances, I will order the appellant to pay half of the respondent’s costs of the appeal, to be assessed.