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Logan City Council v Brookes

[2020] QDC 24

Logan City Council v Brookes[2020] QDC 24

DISTRICT COURT OF QUEENSLAND

CITATION:

Logan City Council v Brookes [2020] QDC 24

PARTIES:

STEPHEN BALL ON BEHALF OF LOGAN CITY COUNCIL

(appellant)

v

THOMAS JOSEPH BROOKES

(respondent)

FILE NO/S:

BD No 3519 of 2018
MC No 20650 of 2017

DIVISION:

 

PROCEEDING:

Appeal
Application for Leave to Adduce New Evidence

ORIGINATING COURT:

Magistrates Court at Beenleigh – Date of Delivery of Decision: 29 August 2018

DELIVERED ON:

10 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

5 December 2019

JUDGE:

Jarro DCJ

ORDERS:

  1. Leave to adduce fresh evidence is granted.
  2. The appeal is allowed. 
  3. I will hear from the parties as to further orders.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING AND DEVELOPMENT PROSECUTIONS – GENERALLY – where the respondent, without a permit, moved seven shipping containers onto his property – where the appellant commenced proceedings by way of seven complaints charging the respondent with carrying on assessable development without a permit contrary to s 578 of the Sustainable Planning Act 2009 – where the complaints were particularised as carrying on “building work” as defined in s 10 of the Sustainable Planning Act 2009 – where the learned magistrate found that each shipping container was not a “fixed structure” and as such did not amount to carrying on building work – whether the learned magistrate erred in finding that the movement of the shipping containers was not “building work”

EVIDENCE – GENERAL PRINCIPLES – EVIDENCE LAW – RULINGS AND FINDINGS – where the learned magistrate admitted into evidence an agreed statement of facts containing purported admissions pursuant to s 148A of the Justices Act 1886 – where the respondent was self-represented at trial – where the respondent argues on appeal that he did not consent to the agreed statement of facts – where the agreed statement of facts was tendered by the appellant without objection from the respondent – where the respondent later stated in the trial that some facts were agreed but others were not – whether the respondent should be allowed to resile from the agreed statement of facts

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – PROCEDURE – where the appellant applied for leave to adduce new evidence – where the appellant seeks to adduce evidence of correspondence between the parties in relation to the agreed statement of facts tendered at trial so as to answer the respondent’s argument on appeal – the test in Pavlovic v Commissioner of Police [2007] 1 Qd R 344 – whether the appellant should be granted leave to adduce new evidence

Justices Act 1886, s 148A, s 222, s 223

Sustainable Planning Act 2009, s 7, s 10, s 578

Dafydd v The Commissioner of Police [2013] QDC 12, cited.

Dilworth v Commissioner of Stamps [1899] AC 99, applied.

Gallagher v The Queen (1986) 160 CLR 606, considered.

Mann v Sunshine Cost Regional Council [2017] QDC 277, followed.

McKay v Dedman [2015] QDC 55, considered.

Pavlovic v Commissioner of Police [2007] 1 Qd R 344, applied.

Watson v Monash City Council (2011) 186 LGERA 10, cited.

Wyong Shire Council v Cohen (2004) 133 LGERA 355, cited.

COUNSEL:

K Wylie for the appellant
S W Trewavas for the respondent

SOLICITORS:

MinterEllison–Gold Coast for the appellant
MacPherson Kelley Lawyers for the respondent

  1. [1]
    The appellant appeals against the decision made in the Magistrates Court at Beenleigh dismissing seven complaints for breaches of s 578 of the now repealed Sustainable Planning Act 2009 (“SPA”).  The breaches are said to relate to the placement by the respondent, who occupies land within the appellant’s local government area, of seven shipping containers without a development permit.  By written reasons delivered on 29 August 2018, the respondent was acquitted of each complaint.
  1. [2]
    The appeal is brought pursuant to s 222 of the Justices Act 1886 (“the Act”). 
  1. [3]
    In addition, the appellant seeks leave to adduce fresh evidence pursuant to s 223(2) of the Act. Fresh, additional or substituted evidence can be adduced if the court is satisfied there are special grounds for granting leave. If the court grants leave, the appeal is by way of rehearing on the original evidence and on the new evidence adduced.

Should Fresh Evidence be Adduced?

  1. [4]
    The fresh evidence which the appellant seeks to adduce involves correspondence between the then self-represented defendant and the solicitor for the appellant relating to agreed facts prior to the commencement of the Magistrates Court summary hearing. The application to adduce fresh evidence is opposed.
  1. [5]
    The fresh evidence is contained within an affidavit of the appellant’s solicitor and comprises:
  1. (a)
    an email sent from the appellant’s solicitor to the respondent defendant on 28 June 2018 which attached a draft agreed statement of facts with some 27 paragraphs and which requested that the defendant review that draft statement;
  2. (b)
    an email sent from the defendant to the appellant’s solicitor on 2 July 2018 where he expressly agreed to only eight of the 27 paragraphs contained within the draft agreed statement of facts; and,
  3. (c)
    an email sent by the appellant’s solicitor to the defendant later on 2 July 2018 where he acknowledged agreement of the eight paragraphs contained within the draft statement and provided an amended draft agreed statement of facts containing those eight paragraphs.[1]
  1. [6]
    The affidavit is sought to be relied upon to demonstrate consensus between the parties about agreed facts for the purposes of the summary hearing.
  1. [7]
    During the opening of the summary hearing, Counsel for the complainant introduced the agreed statement of facts, which became Exhibit 1, in the following manner:

MR WYLIE:  Your Honour, I propose to give just a very brief outline.  Your Honour, can I commence by tendering an agreed statement of facts - - -

BENCH:  Yes.

MR WYLIE: - - - between myself and Mr Brookes.

BENCH: Thank you.  All right.  Thank you.

MR WYLIE: Your Honour, may that be marked as an exhibit.

BENCH: I will.  I'll mark that as exhibit 1.”[2]

  1. [8]
    The respondent made no complaint or objection to the tender of Exhibit 1. I do note however that earlier in the course of proceedings, and prior to the opening of the complainant’s case, the following exchange occurred:

“BENCH:  Well, I understood there was an agreed set of facts.  Is that not the position?

DEFENDANT:  Sorry?

BENCH:  I understood there was an agreed set of facts.  Is that not the position?

DEFENDANT:  There are some facts that are agreed, but most of them aren’t, no. 

BENCH:  I see.  All right.

DEFENDANT:  Yeah.

BENCH:  Okay.  All right.  Well, we’ll - - -

DEFENDANT:  Which I did [complainant’s solicitor] where he sent me that.  I said I’ve only - - -.”[3]

  1. [9]
    In his Honour’s written reasons, the learned Magistrate stated the following:

“[5] An agreed set of facts between the parties did facilitate the hearing of the complaints, but despite that there did seem some inconsistencies between those agreed facts and the oral evidence.  For example the agreed facts indicated that the defendant became owner of the land on 22 November 2017, yet the defendant in his evidence said it was 30 June 2017.  The defendant in his submissions seemed to largely ignore these agreed facts but as they were submitted as agreed facts at the outset of the trial without objection I consider that both parties are bound by them.

[6] …That of course is inconsistent with the agreed set of facts.  As the trial proceeded on the basis of the agreed facts I do not consider that the defendant can now dispute those facts.

[10] …These shipping containers were, on the agreed facts, moved onto the land by the defendant over a few days commencing 21 December 2016.  It is further agreed that the containers were used for storage purposes.  Indeed in evidence the defendant clearly stated that none of the containers was used as a site office in respect of other building works carried on upon the land, but were used for storing tools and building materials.”

  1. [10]
    In support of its application to adduce the fresh evidence, the appellant has submitted that the respondent was aware of the existence of the agreed statement of facts throughout the summary hearing, which was demonstrated by:
  1. (a)
    Counsel for the complainant referring to Exhibit 1 during the opening including:

“On the 21st of December, as per the statement of agreed facts, Mr Brookes placed seven shipping containers on the property, and he's since been using those shipping containers as onsite sheds, storing vehicles, personal items, and some construction material.”[4]

and

“MR WYLI E: Your Honour, in circumstances where the statements of agreed facts have gone in, the witnesses that we called are very few.”[5]

  1. (b)
    The respondent being invited, during his evidence, to do so with the assistance of Exhibit 1;[6] and,
  1. (c)
    The respondent being cross-examined on Exhibit 1, and making no complaint as to the correctness or otherwise of it, as demonstrated by the following exchange:

“MR WYLIE: Mr Brookes, do you have a copy of exhibit 1?  These pictures?--­ Not - not on me, but - - -

BENCH:  Here you are.   You can have that too.

MR WYLIE: Thank you.  Actually, I might have another copy to leave your Honour with a copy.

BENCH: Well, all right.  I've you've got another copy, we can - - -?---Yeah.  That's fine.

MR WYLIE:  Mr Brookes, when you identified - when you gave your evidence at the commencement, you talked about the seven shipping containers, and what was in each of them, and you described one of the shipping containers as a site office?---No. I did not.

Which one was that?---I did not. 

Well, which one of these shipping containers are site offices?---None. None of them are site offices?---No.”[7]

  1. [11]
    At the closure of the evidence and because the respondent was unwell, the learned Magistrate directed that rather than make oral closing addresses, the parties were to each provide written submissions within seven days, with each party being at liberty to file submissions in reply after a further seven days. Both parties filed written submissions as well as reply submissions.[8]
  1. [12]
    It was submitted on behalf of the respondent that the defendant never agreed to the agreed statement of facts. Reliance was placed on the passage identified earlier in these reasons and the provisions of s 148A of the Act.[9]  It was submitted that the facts that were agreed and the facts that were disputed were never clarified and therefore no formal admission was made by the defendant below.
  1. [13]
    As to the approach to allow fresh evidence on appeal under the Act, I was referred to the decision of Burnett DCJ in McKay v Dedman [2015] QDC 55 at [31] – [34].  In that decision, his Honour cited Jones DCJ in Dafydd v The Commissioner of Police [2013] QDC 12, who in turned applied the authority of Pavlovic v Commissioner of Police [2007] 1 Qd R 344 with reference to Gallagher v The Queen (1986) 160 CLR 606.  The three main considerations enunciated in the latter authority involve:  whether ‘the evidence relied on could with reasonable diligence have been produced by the accused at the trial’; whether ‘the evidence is apparently credible (or at least capable of belief)’; and whether the evidence, if believed, ‘might reasonably have lead’ a tribunal of fact ‘to return a different verdict’.  I was also referred to the decision of Porter QC DCJ in Mann v Sunshine Cost Regional Council [2017] QDC 277 and respectfully agree where his Honour at [41] stated:

“…that the criteria identified in Gallagher were not said by the Court of Appeal to exhaustively or exclusively define the matters relevant to the exercise of the discretion conferred under section 223 Justices Act.  They merely provided a “useful guide”.  The discretion must be considered in the circumstances of each particular case…”.     

  1. [14]
    I have formed the view there are special grounds to adduce the evidence. In the interests of justice, it seems to me the evidence provides context as to the circumstances of the agreed statement of facts which led the complainant to conduct the hearing in the manner in which he did below and ultimately led the learned Magistrate to his reasons and order. It is important to permit the fresh evidence particularly in circumstances where the respondent has relied upon an argument in order to defeat the substantive appeal that s 148A of the Act was not satisfied such that there were no admissions of fact at the summary hearing. To not permit the evidence would now prejudice the appellant.
  1. [15]
    Having considered the material sought to be adduced, I take the view that the respondent consented to certain admissions which were ultimately reduced to writing and produced at the summary hearing.[10]  Moreover, during the summary hearing, the respondent stated to the learned Magistrate that “some facts … are agreed, but most of them are not”.  The purpose of the receipt of this fresh evidence enables me, for the purposes of this appeal, to appreciate the exact nature of that exchange. 
  1. [16]
    The defendant was given ample opportunity throughout the two day summary hearing to dispute any admissions of fact. The admissions were tendered at the opening without objection. They were referred to during the opening, including an indication to the learned Magistrate by counsel for the complainant that “very few” witnesses were to be called “in circumstances where the agreed statement of facts have gone in”.  The admissions were also raised in the course of the defendant giving his evidence, including cross examination.  They were also referenced in the written closing submissions of the complainant.  The defendant provided written closing submissions (including in reply) after the complainant’s written submissions.  At no stage was any dispute taken about the content of those admissions. 
  1. [17]
    In the circumstances I consider the respondent should not be allowed to resile from the admissions. The fresh evidence is instructive in this regard as it demonstrates to me that the defendant’s agreement as to “some facts” and that those agreed were communicated by and to the appellant’s solicitor and the defendant was clearly referring to the eight paragraphs he identified in his email of 2 July 2018.  Those eight paragraphs were reduced indeed to the agreed statement of facts, being Exhibit 1 at the summary hearing.
  1. [18]
    Finally, the evidence sought to be adduced in this instance is for the purpose of responding to issues that could have been raised by the defendant below, but were not. I am not of the view that the appellant is seeking to use the summary hearing as a “dress rehearsal”. In this instance, the evidence falls within the category where the appellant did not know the material, although readily capable of provision, was relevant and thus did not provide it.[11]  Further there is no evidence to doubt the credibility of the content of the appellant’s solicitor’s affidavit.  Finally, given the defendant was ultimately acquitted, it is unlikely that the evidence would have led the tribunal of fact to return a different verdict.  All in all, I have formed the view that leave should be granted to rely upon the evidence.

Substantive Appeal

  1. [19]
    To succeed on the appeal, the appellant needs to show some legal, factual or discretionary error.[12] 
  1. [20]
    The appellant does not challenge the factual matrix determined by the learned Magistrate. Rather the appellant seeks to challenge the legal consequences of those facts. The submission advanced is that the learned Magistrate erred in law in finding that the shipping containers were not “buildings” or “structures” (as those terms are used in the SPA and the Building Act 1975 (“BA”)), since they were required to be fixed to the ground with the consequence that movement of the shipping containers onto the defendant’s land did not comprise “assessable development” requiring a development permit.[13]
  1. [21]
    The respondent contends that the appellant is unable to identify any legal error that would entitle success on this appeal. The respondent submits the appellant is, in effect, seeking to advance a different case on appeal than was advanced at trial. It was submitted by the respondent that the case advanced by the appellant at trial was that the relevant building work was “moving” a “building”, whereas on appeal, the appellant sought to impugn the decision of the learned Magistrate by arguing that the building work was “moving” a “structure”. Accordingly this departure should not be entertained on appeal. Alternatively if the court were to entertain the appeal, the appeal should fail on the basis that there was no agreement as to admissions regarding agreed facts.
  1. [22]
    The complaint before the learned Magistrate involved seven alleged contraventions of s 578 of the SPA by the defendant. Section 578 of the SPA relevantly provides:

578  Carrying out assessable development without permit

  1. (1)
    A person must not carry out assessable development unless there is an effective development permit for the development.”
  1. [23]
    The seven alleged contraventions were all in identical terms and asserted that the defendant “carried out assessable development, namely building work, being the moving of a shipping container onto the land … without an effective development permit for the development”.[14] 
  1. [24]
    The particulars of the seven alleged contraventions were also in identical terms and relevantly stated as follows:

“…

  1. Development was assessable development, as defined under the Sustainable Planning Act 2009 (‘the Act’), and required a development permit under the Act if it involved carrying out building work and the building work was not:
  1. (a)
    Self-assessable development under schedule 3, part 2 of the Sustainable Planning Regulation 2009 (‘the Regulation’); and
  2. (b)
    Declared under the Building Act 1975 (‘the BA’) to be exempt development;
  1. A shipping container was moved onto the land …(‘the work’);
  1. The work was development, as defined by the Act, as it involved carrying out building work, as defined by the Act and the BA, namely moving a building;
  1. The work was assessable development because it involved carrying out building work and the building work was not:
  1. (a)
    Self-assessable development under schedule 3, part 2 of the Regulation; and
  2. (b)
    Declared under the BA to be exempt development;
  1. The work, being assessable development, required a development permit;
  1. THOMAS JOSEPH BROOKES carried out or caused to be carried out the work;
  1. No exemption pursuant to chapter 7, part 3, subdivision 2 of the Act applied to the work;
  1. The work was not carried out under s 342(3) of the Act; and
  1. The work was not authorised to be an effective development permit, within the meaning of that term in the Act.”
  1. [25]
    At [13] – [20] of his Honour’s reasons, the learned Magistrate stated as follows:

“[13]…the allegation is that by moving shipping containers onto the land the defendant was carrying out assessable development, namely building work.  ‘Assessable development’ is unhelpfully defined in section 232 of the Sustainable Planning Act as something defined by regulation.  Regulations were made pursuant to the Sustainable Planning Act 2009 and section 9 of those regulations stipulate the developments, amongst other things, are assessable developments.  That section provides that all building work defined under the Building Act is assessable development that does not come within part 2 of the schedule.  Part 2 relates to work declared under that Act to be self-assessable.  It is to that Act I must now turn, but before doing so wish to comment upon the submission made by the Complainant on this point.  The complainant argues that it is two sections 7 and 10 of the Sustainable Planning Act that I should refer to when deciding if an offence has been committed.  I beg to differ.  The complaint alleges the carrying out of “assessable development” without a development permit (Section 578(1) Sustainable Planning Act).  Neither of those sections refer to ‘assessable development’.  I consider that reference must be had to the regulations to find a definition of ‘assessable development’ (section 232(1)(c)) and that from there reference is had to the Sustainable Planning Regulations 2009 (Section 9) and from there to the Building Act.

[14] The relevant part of the definition of ‘building work’ as defined under the Building Act 1975 is:

  1. (a)
    ‘Building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure.
  2. (b)
    Other work regulated under the Building Assessment Provisions, other IDAS.’

[15] A building is defined as a ‘fixed structure that is wholly or partly enclosed by walls or is roofed’.

[16] A structure is defined as ‘including a wall or fence and anything fixed to or projecting from a building, wall, fence or other structure.’

[17] The relevant definitions referred to in both the Building Act and the Sustainable Planning Act are in identical terms.

[18] Common to both definitions is the term ‘fixed’.  This term is not defined in the Act and so it is to the Australian Concise Oxford Dictionary that I turn for a definition.  That definition, in so far as it is relevant to buildings is as follows: “Make firm or stable; fasten, secure, implant”.  The Dictionary further defines the term as to “place definitely or permanently”.

[19] The critical question then is whether the containers are a ‘fixed structure’ as defined above.  They certainly have sides and a top that could be considered as a roof.  There is no evidence however that the containers were affixed to the land other than by their own weight.  They were not, for example, bolted down.  There is evidence that two containers were placed on a concrete slab … part of Exhibit 15 shows what appears to be one container on a slab.  More telling however is Exhibit 5 which clearly shows two, possibly three containers simply mounted on blocks or placed on the ground.  By placing the containers on a slab or on blocks, does this make them firm or stable and thereby bring them within the definition of ‘fixed’?  When interpreting a statute for criminal proceedings where there is ambiguity the statute should be read in favour of the defendant.  In this case it seems to me clear that simply placing a container upon a slab without more does not constitute affixing the container to the ground.  The structures are not fastened, secured or implanted.  They may be stable but if the ambiguity occasioned by the definition is to be read in favour of the defendant then stability is not enough.

[20] Additionally the definition of the term ‘structure’ as defined in the Act connotes some means to permanently attach to the ground.  It seems to me that for the containers to be classed as a building there must be some means by which they are attached to the ground or a concrete slab other than by their own weight.  Additionally, there is evidence of the defendant who says that these containers are temporary only and he intends to move them.  Further on this point I note that containers inherently are designed to be moved, they are not designed nor intended to be placed permanently or for prolonged periods.  I acknowledge that they may be adapted for permanent placement but there is no evidence of that here.” 

  1. [26]
    The learned Magistrate then went onto determine that the shipping containers were not fixed and ultimately decided that the movement of them was not “development” for the purposes of the SPA.
  1. [27]
    Whilst I agree with much of the learned Magistrate’s fulsome reasons, I differ in two material respects. The first is that “structure” is not defined in the SPA[15]; nor must it follow, having regard to the dictionary definition, that a container needs to be fixed to the ground or permanently attached to it.[16]
  1. [28]
    Indeed the learned Magistrate was correct to refer to s 232 of the SPA when considering the term “assessable development” given schedule 3 of the SPA generally defines “assessable development” and refers to s 232(1)(c). Similarly the learned Magistrate correctly noted that a regulation may prescribe that development is assessable development.[17]  
  1. [29]
    Relevantly, s 9(1)(a) of the Sustainable Planning Regulation 2009 (SPR) provides that, for the purposes of s 232(1) of the SPA, development stated in Schedule 3, Part 1, is “assessable development”.  Schedule 3, Part 1 of the SPR, relevantly states:

“Schedule 3 Assessable development, self-assessable development and type of assessment

Part 1 Assessable development

Table 1—Building work

Column 1

Column 2

Column 3

For the Building Act

1

For assessing building work under the Building Act, building work that is not—

  1. (a)
    self-assessable development under part 2; and
  2. (b)
    declared under the Building Act to be exempt development

Code assessment

  1. [30]
    Again as the learned Magistrate properly noted, it was then necessary to proceed to the BA.
  1. [31]
    In accordance with s 20 of the BA, all building work is assessable development unless it is exempt development or self-assessable development.[18]  Building work is defined in s 5 of the BAIt relevantly provides as follows:

5 What is building work

  1. (1)
    Building work is—
  1. (a)
    building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or….”
  1. [32]
    The word “building” is defined in Schedule 2 of the BA to be a “fixed structure that is wholly or partly enclosed by walls or is roofed”. The term also includes a floating building or any part of a building”. Schedule 2 defined “structure” as “includes a wall or fence or anything fixed to or projecting from a building, wall, fence or other structure”.
  1. [33]
    The appellant relies upon the word “includes” within the definition of “structure” such that structures need not be limited to walls or fences, or things affixed to existing buildings, walls, fences or other structures. I accept this proposition as reliance was placed on the authority of Dilworth v Commissioner of Stamps [1899] AC 99.  In that case, it was held that where a definition term uses the words “includes”, it ordinarily means that the term is given its ordinary meaning, with the “inclusive” meaning being supplemented to that ordinary meaning, unless the context of the definition requires the term “includes” to be read as “means and includes”.[19]
  1. [34]
    The appellant submits, and I accept, that in circumstances where structures cannot be said to be limited to walls or fences, or things affixed to buildings, walls, fences or other structures, the term “includes” must be given its general meaning as that described in Dilworth, such that a proper interpretation would require the term “structure” to be given its ordinary meaning, subject to:
  1. (a)
    walls or fences being defined as structures too, regardless of whether they would fall within the ordinary meaning of the term; and
  2. (b)
    objects being fixed to buildings, walls or fences or other structures being considered separate structures, such that they retain their independence, and cannot be said to ‘accrete’ to existing buildings or structures.  The requirement for separate buildings and structures to be considered independently is consistent with a requirement, under the National Construction Code Volume 2, part 1.3.3, which provides that each part of a building must be classified separately.[20]
  1. [35]
    Therefore contrary to the interpretation given by the learned Magistrate, there was nothing in the definition of “structure” in either the BA or SPA which required the structure to be fixed to the ground. This in my view is an error of law which enables this court to reconsider the complaint on the evidence led below.
  1. [36]
    The movement of the shipping containers onto the property is considered “development” when regard is had to s 7 and 10 of the SPA because the defendant has carried out building work by moving the shipping containers onto the property (namely moving a “building” or “other structure” in order to carry out building work). If it matters, then consistent with the decisions of Watson v Monash City Council (2011) 186 LGERA 10 and Wyong Shire Council v Cohen (2004) 133 LGERA 355, I consider the shipping containers to be “other structure(s)”.[21]  If I am wrong about this, I note that in s 10 of the SPA, the definition of “building work” refers to both “building” or “other structure” and therefore the shipping containers would fall within a category contemplated by the legislation.  After all, the term “building” is defined to be “a fixed structure”.[22]  A “fixed structure” is akin to a subcategory of “structure” which, in my view, explains the definition of “building work” which is defined in the SPA to be “building…or other structure”.  Therefore the term “other structure” may be an unfixed structure.   
  1. [37]
    It is then necessary to consider whether movement of the shipping containers onto the property constitutes “assessable development” for which a permit is required. It will be “assessable development” if none of the exceptions stated in s 20 of the BA or Schedule 3, Part 1 (Item 1) of the SPR apply. I have reached the view that none of the exceptions apply in the present instance.
  1. [38]
    Dealing first with s 20 of the BA. The movement of the shipping containers onto the property is not “exempt development” for the purposes of s 22 of the BA because, in my view, neither the Building Regulation 2006 (“BR”) nor the SPR deem such movement to be “exempt development”.[23]  Further, s 20(b) of the BA is not applicable in the present instance because movement of the shipping containers onto the property is not “self-assessable development” under either the SPA or s 21(2) of the BA.[24]  
  1. [39]
    Dealing then with Schedule 3, Part 1 (Item 1) of the SPR.[25]  Regarding the first exemption, namely “self-assessable development under part 2”, I have formed the view that the exemption does not apply in circumstances where, within Schedule 3, Part 2 of the SPR, Item 2 provides that none of those items could be said to relate to the shipping containers.  Regarding the second exemption, namely “building work that is not declared under the Building Act to be exempt development”, I have reached the view that the exemption does not apply in circumstances where s 22 of the BA allows exemptions (described in schedule 2 of the BR), which are not applicable in this instance.[26]  Items 2 to 4 of the Regulation cannot be said to apply to the work as it does not involve sun hoods, tents or other work for a class 10 building or structure.  Item 1 of the Regulation does not apply because it is not “building work for a class 10b structure or special structure” given each container is not a fence, retaining wall, free standing wall or swimming pool.  Whilst the containers are no higher than three metres, Item 1 cannot apply because, under the Building Code of Australia, the containers are deemed to be class 10a structures as they are currently used for the storage of furniture, construction materials, vehicles and other personal effects.[27]
  1. [40]
    It is for those reasons that I find that the movement of the containers onto the site comprised assessable development, for which a development permit was required.
  1. [41]
    I do not accept, as was submitted by the respondent, that the case advanced on appeal was different to that advanced at the summary hearing. The defendant knew full well the nature of the complaint alleged against him.[28]  It is of no moment that among one of the 13 particulars of the charge, fleeting reference is made to “moving a building” as opposed to “moving a structure”.[29]  It was patently clear that the defendant had to defend one issue, that issue being that he allegedly breached s 578(1) of the SPA because he did not have an effective development permit for the movement of the shipping containers onto his property (otherwise known as assessable development of the purposes of the legislation).[30]  I could see nothing new raised in this appeal which was not ventilated before the learned Magistrate which could be suggested to have caused any prejudice to the respondent or taken him by surprise.  
  1. [42]
    In the circumstances, I find the complaints proven.
  1. [43]
    The orders, therefore, will be that the appeal be allowed and verdicts of guilty be entered with respect to charges 1-7 of the subject complaint. I will hear from the parties as to submissions regarding penalty.

Footnotes

[1]In identical terms to what became Exhibit 1:  see court document 8.

[2]T1-10, ll 9 – 20.

[3]T1-6, ll24 – 39. 

[4]T1-10, ll 33 – 36. 

[5]T1-12, ll 46 – 47. 

[6]T2-4, ll 29 – 30.

[7]T2-15.

[8]See Magistrates Court file.

[9]See [8] of these reasons.

[10]S 148A of the Act. 

[11]Per McKay at [34].

[12]See Tierney v Commissioner of Police [2011] QCA 327 at [26] per Margaret Wilson AJA (McMurdo P and Chesterman JA agreeing). 

[13]Reasons for judgment [18]-[19].

[14]See Complainant and Summons filed 15 December 2017.

[15]Cf [17] of the learned Magistrate’s reasons.  However the term “building work” is in identical terms in both the SPA and BA – see ss 10(1) and 5(1)(a) respectively.

[16]The Shorter Oxford English Dictionary defines “structure” as:

“1.  The action, practice, or process of building or construction…

2.  The arrangement and mutual relation of the constituent parts of a whole, composition, make-up, form.

3.  A thing which is built or constructed; a building, an edifice.  More widely, any framework or fabric of assembled material parts…”

The Macquarie Dictionary defines “structure” as:

“1. Mode of building, construction, or organisation; arrangement of parts, elements or constituents.

2. something built or constructed; a building, bridge, dam, framework, etc.

…”

 

[17]Section 232(1)(c) of the SPA.

[18]See s 20 of the BA.

[19] Per Lord Watson at 105-106 and applied in YZ Finance Co Pty Ltd v Cumming (1964) 109 CLR 395 at 398, 402, 404 and 406.  I note the learned Magistrate was not referred to Dilworth

[20] Exhibit 3.

[21] See also for instance Council of City of Gold Coast v Thi Hoa Dam [2015] QPELR 1029 and Jambercina v Black Town City Council [2009] NSWCA 228 [41]-[43].

[22]See Schedule 3 “Dictionary” of the SPA.

[23]None of the items stipulated in Schedule 2 of the BR apply.

[24]See Schedule 3 “Dictionary” of the SPA (definition of “self-assessable development”).  Further, in light of the evidence led at the summary hearing, I consider none of the items in Schedule 1 of the BR relate to the shipping containers (and movement thereof).  See also further in these reasons when considering Schedule 3 of the SPR. 

[25]See [28] above.

[26]See s 5 of the BR.

[27]See Exhibit 3 p 35.  See also the Council of the City of Gold Coast v Thi Hoa Dam [2015] QPELR 1029 at [44]-[48].

[28]Johnson v Miller (1937) 59 CLR 467 at 489 – 490.

[29]Further when one looks at the entire wording of Particular 7 of the complaint, it is apparent that what was required to be proved by the complainant was that the work (which was particularised immediately prior in Particular 6 to the complaint) was “development” as defined by the SPA, as it involved carrying out “building work” as defined by the SPA and the BA.  In any event, the definition of “building work” stipulated in s 10 of the SPA refers to both “building” and “structure”. 

[30]Further no issue was taken at the summary hearing regarding one of the particulars of the complaint referring to “building” as opposed to “structure”.

Close

Editorial Notes

  • Published Case Name:

    Logan City Council v Brookes

  • Shortened Case Name:

    Logan City Council v Brookes

  • MNC:

    [2020] QDC 24

  • Court:

    QDC

  • Judge(s):

    Jarro DCJ

  • Date:

    10 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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