Vukolic v Browning[2022] QDC 279

DISTRICT COURT OF QUEENSLAND

Contents

Summary

105. [1]
     The appellant (Mr Vukolic) appeals his conviction on three counts of carrying out assessable development without a development permit contrary to s. 163(1) Planning Act 2016 (the Planning Act) on two grounds:

     1. (a)
        First, that the complaint was brought out of time.  This ground turned on whether Ms Browning or her employer, Brisbane City Council (BCC), was the complainant for the purposes of applying the statutory time limit in s. 173A(1)(b) Planning Act; and

     2. (b)
        Second, that there was no evidence to exclude the application of the exceptions in s. 163(2) Planning Act. This ground turned on whether the elements of the offence under s. 163 Planning Act were limited to the matters arising under s. 163(1) or extended to include the matters in s. 163(2).  
106. [2]
     For the reasons which follow, I have concluded that:

     1. (a)
        Ms Browning was the complainant and accordingly, the complaint was brought within time;

     2. (b)
        I ought to follow existing authority in the Queensland Planning and Environment Court determining that the elements of the offence created by s. 163 include the matters in s. 163(2) Planning Act; and
     3. (c)
        The complainant failed to establish at trial that three exceptions in s. 163(2) were excluded beyond reasonable doubt.
107. [3]
     Accordingly, while the first ground relied upon has failed, the appellant has made good its second ground of appeal and the convictions must be set aside.

Background

108. [4]
     Since 8 February 2016, the Appellant has been the registered owner of land at 362 Gooderham Road, Willawong, more particularly described as Lot 3 on RP188306 (the Land).^[1] The land adjoins Learoyd Road to the south, Oxley creek to the north, and is not improved by any buildings or structures.
109. [5]
     The Land has an area of 39,676 m², and since 1 July 2014 has been located within the Environmental management zone area under Brisbane City Council’s City Plan 2014 (City Plan) planning scheme. Under City Plan, the land falls entirely within the biodiversity area overlay area, and in part within the Waterway corridor overlay area. ^[2] 
110. [6]
     On 15 May 2019, BCC gave Mr Vukolic an enforcement notice under s. 168   Planning Act as owner of the Land in relation to alleged offences against the Act that were substantially the same as the offences the subject of the charges at trial.  On 18 July 2019, BCC gave Mr Vukolic a second enforcement notice again in relation to alleged offences substantially the same as the offences the subject of the charges.^[3]
111. [7]
     Council inspections undertaken in July 2019 identified two areas of the land that had been cleared of vegetation and had been subjected to filling over natural soils in a manner that constituted operational work as defined in Schedule 2 Planning Act. The areas comprised:

     1. (a)
        Area A, on the southeastern corner of the Land, with an area of 2,092 m2 (and with 2,583 cubic metres of fill); and
     2. (b)
        Area B, on the eastern part of the Land, with an area of 6,765 m2 (and with 6,004 cubic metres of fill). ^[4]
112. [8]
     The above matters were uncontentious at trial.  However, there was no concession about, inter alia, when the works were undertaken.
113. [9]
     On 22 May 2020, Ms Browning swore a complaint alleging three offences by Mr Vukolic against s. 163(1) of the Planning Act:

     1. (a)
        Charge 1 related to alleged unlawful vegetation clearing of Area A and Area B;
     2. (b)
        Charge 2 related to alleged unlawful filling in the Area B area; and
     3. (c)
        Charge 3 related to alleged unlawful filling in the Area A area.
114. [10]
     The complaint relevantly provides^[5]:

The complaint of SHARON BROWNING of Brisbane in the State of Queensland, being a “public officer: as defined by the Justices Act 1886, as amended, and a delegate and authorised officer acting in his [sic her] representative capacity, being a Compliance and Investigations Manage, Compliance and Regulatory Services, Lifestyle and Community Services, Brisbane City Council, made this 22^nd day of May 2020 before the undersigned, a Justice of the Peace of the State of Queensland, who says that:

CHARGE 1

On 16 April 2020, it came to the complainants [sic] knowledge that on a date, or dates, unknown between 28 June 2017 and 26 July, MILADIN VUKOLIC, at premises situated at 362 Gooderham Road, North Willagong…(“the premises”)…..did carry out assessable development without an effective development permit in effect, contrary to s. 163(1) of the Planning Act 2016.

Particulars

1. Miladin Vukolic was the owner of the premises at all relevant times;
2. Between 28 June 2017 and 26 July 2019, assessable development, namely the clearing of vegetation within a Koala habitat area sub-category under the City of Brisbane Plan 2014, was carried out on the premises;
3. The clearing of vegetation was assessable development as the clearing was not associated with a dwelling house and exceeding an area of 500m²;
4. Miladin Vukolic did cause the vegetation clearing to occur
5. The [sic There] There was no development permit in effect permitting the assessable development to be carried out; and
6. The assessable development was carried out without an effective development permit. 

CHARGE 2

… 

CHARGE 3

…

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

Signature of the Complainant.

115. [11]
     The other two charges differed from Charge 1 only in the manner that they articulated the assessable development.  They were otherwise in the same terms as Charge 1.   Mr Vukolic pleaded not guilty, and following a trial was convicted of all three offences.  He was fined, costs orders were made, and an enforcement order was made pursuant to s. 176 Planning Act. 

The Appeals

116. [12]
     By his Notice of Appeal, Mr Vukolic appealed his conviction on all three charges and also appealed the costs order and enforcement order made by her Honour.  The complainant cross appealed on sentence, contending that the penalty was inadequate.  The sentence appeal was adjourned to a date to be fixed, pending determination of the conviction appeal.  Further, it was agreed by the parties that Mr Vukolic’s appeal of the enforcement order and in respect of costs should also be adjourned, leaving the appeal of the convictions to be dealt with on the first hearing of this matter.
117. [13]
     Mr Vukolic’s Notice of Appeal raises seven grounds of appeal against his conviction.  Prior to the hearing, Mr Vukolic abandoned grounds three to seven.  Grounds one and two provide:

1. The Primary Magistrate erred in convicting the Defendant on all three charges contrary to s. 173A (1) of the Planning Act, because the offence came to the complainants’ knowledge prior to 22 May 2019; and

2. The Primary Magistrate erred in convicting the Defendant on all three charges notwithstanding the absence of evidence that the impugned development was not carried out pursuant to any of the matters prescribed by s. 163(2) of the Planning Act 2016.

118. [14]
     It is accepted by both parties that each of those grounds applies equally to all three charges, such that success on either ground will lead to the setting aside of all the convictions.
119. [15]
     Ground one was not raised before her Honour.  Ground two was raised but dealt with in brief terms in the reasons.  Given the confined nature of the conviction appeal, it is unnecessary to summarise her Honour’s reasons.
120. [16]
     This is an appeal by way of rehearing.  The appellant must show error.  It is unnecessary further to dwell on the nature of this appeal.^[6] 

Ground 1: Complaint out of time?

Preliminary observations

121. [17]
     Section 173A (1) Planning Act relevantly provides:

173A Limitation on time for starting proceedings

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

   1. within 1 year after the offence is committed; or
   2. within 1 year after the offence comes to the complainant’s knowledge.

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

122. [18]
     There was no consideration of precisely when the proceeding comprised in the complaint was started within the meaning of s. 173A.  However, it cannot have been earlier than the date of the issue of summons to Mr Vukolic by the Justice of the Peace to whom the complaint was made.  That date is 22 May 2020.^[7]
123. [19]
     Ground one is premised on the assumption that the first limb of s. 173A(1) does not apply.  The appellant submits^[8]:

The complaint was made on 22 May 2020 and alleged offending which occurred on dates unknown between 28 June 2017 and 26 July 2019 - well outside the 1-year period stipulated by s. 173A(1)(a). Therefore, for the charge to be effective, the complainant had to demonstrate that the proceedings commenced within 1 year of the offence coming to the complainant’s knowledge

124. [20]
     Is that assumption correct? Each charge alleged offending which occurred on dates unknown between 28 June 2017 and 26 July 2019.  The alleged period of offending ends less than 1 year before the starting of the proceedings.  The premise of the appellant’s submission seems to be, therefore, that unless the whole of the offending occurs within a year after the offence is committed, the complaint does not fall within the scope of s. 173A(1)(a).

125. [21]
     If that is the premise of ground one, it is open to doubt.  This issue was dealt with in Baker v Smith (No. 1) [2019] QDC 76 (Baker).  One of the issues which arose in that case was precisely the issue in paragraph [20].  In that case, the appellant/defendant was contending, relevantly to this case, that the charges in one of the complaints for unlawful clearing was out of time because it fell outside the scope of the equivalent provision to s. 173A(1)(b) in the predecessor planning statute to the Planning Act; (the Sustainable Planning Act 2009 (the SPA) because some of the particularised offending occurred outside the 1 year period.  The respondent/complaint answered that proposition, amongst other ways, by relying on the equivalent provision to s. 173A(1)(a).  The argument advanced by the respondent was that so long as any material part of the unlawful clearing occurred in the period less than a year before the complaint was commenced, the complaint was within time.  That argument was successful.  As I explained in paragraphs [476] to [486] of the judgment, the authorities support the conclusion that an offence of unlawful clearing was a single offence comprising a series of acts, such that so long as any material act of clearing occurred within time, a complaint was within time.  That part of the judgment was not challenged in the application for leave to appeal.

126. [22]
     I can see no reason why the authorities identified in Baker, especially at [485] would not apply to the offences charged here.   That is easily concluded for the unlawful clearing, which was the offending in Baker.  As to unlawful filling, that is in my opinion an offence of analogous character to tree clearing, at least from the perspective of the acts comprising the offence.   To adopt the words of one of the judgments cited in Baker, unlawful filling can arguably be characterised as one activity where the offence is defined in terms of a course of conduct comprising a series of closely related acts taking place whether continuously or intermittently over a period of time.^[9] 
127. [23]
     It is however unnecessary to resolve this issue for two reasons.

     1. (a)
        First, no such argument was advanced by the respondent on the appeal in answer to ground one; and  
     2. (b)
        Second, while the contention by the appellant set out in paragraph [19] was not expressly conceded, it was not challenged by the respondent.   That position also seems consistent with the evidence, at least insofar as it was the subject of findings by her Honour.  At pages 4 to 5 of the decision, her Honour makes findings which conclude that the last observation of filling work by a BCC officer was 14 May 2019.  At least based on those findings, there does not appear to be room for the application of the principle I have described because the complainant does not appear to have established that any part of the tree clearing, or filling, occurred on or after 22 May 2020.
128. [24]
     Accordingly, I proceed on the basis (which appeared to be accepted by the parties) that the complaint was in time only if it could be brought within the scope of s. 173A(1)(b) Planning Act.  As to that prospect, there are two points to make. 

     1. (a)
        First, the complaint alleged that each offence came to Ms Browning’s knowledge in 16 April 2022, about a month before the complaint was commenced.  There was no challenge to that allegation at trial or on appeal.  Nor was it contended by the appellant that the knowledge of persons other than Ms Browning was relevant.  It was not in dispute that if the knowledge for the purposes of s. 173A(1)(b) was the knowledge of Ms Browning, then the complaint was started within time. 
     2. (b)
        Second, it was accepted by the respondent that if the BCC is the complainant whose knowledge is relevant to the application of s. 173(1)(b), then the complaints were sworn out of time.  So much seemingly flows necessarily from the fact agreed at trial that enforcement notices given on 15 May 2019 identified substantially the same offences as those charged in the complaint.

Appellant’s submissions

129. [25]
     The complaint is made, in terms, by Ms Browning, it is signed by Mr Browning, and it alleges Mr Browning’s knowledge as that which engages s. 173(1)(b).  How in those circumstances does the complaint come to be a complaint of BCC?  The appellant begins by pointing to the language of the opening paragraph of the complaint.   He relies on the words following the reference to being a public officer, being the words “and a delegate and authorised officer acting in her representative capacity being [an investigations officer] Brisbane City Council.”
130. [26]
     The appellant relies particularly on Ms Browning identifying herself as acting in a representative capacity for BCC.  The appellant contends that those words objectively communicate that Ms Browning is not bringing the complaint as principal but rather as agent for BCC.  The inference is said to be supported by the following considerations.
131. [27]
     First the words relied upon are unnecessary to identify Ms Browning as acting as a public officer of BCC because she has already stated that expressly.  The appellant submitted that those further words must be given work to do and that their objective meaning is that she is making the complaint as agent for the BCC.
132. [28]
     Second, the appellant relies on s. 42(1) Justices Act 1886 and 218(2) City of Brisbane Act 2010:  

     1. (a)
        Section 42(1) Justices Act provides:

42 Commencement of proceedings

1. (1)
   Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or any other person authorised in that behalf.

2. (b)
   Section 218(2) City of Brisbane Act provides:

218 Name in proceedings by or against council

1. (1)
   Any proceedings by the council must be started in the name of the council.
2. (2)
   However, the council may start a proceeding under the Justices Act 1886 in the name of a council employee who is a public officer within the meaning of that Act

133. [29]
     As I understood the submission, reading these two provisions together, the Court should conclude as follows:

     1. (a)
        By the words in the complaint relied upon by Ms Browning, she showed herself to be commencing the complaint as a person authorised by BCC to commence the complaint on BCC’s behalf; and

     2. (b)
        Given that, the proceedings are in fact proceedings started in the name of BCC under s. 218(1) rather than as a public officer under s. 218(2).
134. [30]
     The appellant’s approach is based on the identification of Ms Browning as commencing proceedings as agent of BCC in the common law sense; that is the effect of Ms Browning’s act in commencing the complaint was to create legal rights and obligation in BCC as principal and therefore as complainant.  The appellant relied upon Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98 (Dixonbuild) as supporting that approach to identifying a complainant under a complaint made on its face by an officer of a local authority.
135. [31]
     In that case, the Court considered a complaint commenced in the following way:

THE COMPLAINT OF CRAIG MAUDSLEY CHIEF OPERATING OFFICER (HEALTH, PARKS AND RECREATION) of IPSWICH CITY COUNCIL … a “public officer” as defined in the Justices Act 1886 … made this day of 14 January, 2010, as authorised agent for and on behalf of IPSWICH CITY COUNCIL before … a Justice of the Peace ….,

136. [32]
     Chesterman JA, with whom White JA and Dalton J agreed, identified the true complainant to be the Council, explaining:

[12]  It is apparent that the complainant in the prosecution was Mr Maudsley and not the Council which employed him. It is equally apparent that he brought the prosecution as agent for and on behalf of the Council, but it was he, not the Council, who made the complaint. Dixonbuild therefore submitted that Mr Maudsley was not a proper complainant and had no authority to commence the proceedings. The point had not been taken before the magistrate and the Council sought and obtained leave to adduce evidence before the District Court judge which established that Mr Maudsley had been authorised to make the complaint. The argument that Mr Maudsley could not be a complainant remained.

…

[14]  There can, I think, be no doubt that Mr Maudsley’s act in swearing the complaint was the act of the Council. He initiated the prosecution “as authorised agent for and on behalf of” the Council, having first described himself as a “public officer” for the purposes of the Justices Act. Section 4 of that Act defines a public officer to be an employee of a local government who is acting in an official capacity. On its face, then, the complaint was made by an employee of the Council acting in an official capacity in the discharge of a statutory power which devolved on the Council. The prosecution was therefore the Council’s, and should have been brought in its name, not Mr Maudsley’s.

…

[21] Section 35 of the LG Act does not in terms prohibit anyone other than a local authority commencing a proceeding for a contravention of the EP Act. It does not displace the operation of s 42 of the Acts Interpretation Act. Section 35 operates where a local authority commences a proceeding by one of its officers or agents. In that circumstance the section insists that the local authority be named as the initiating party in the proceedings.  Section 42(1) of the Justices Act expressly permits a complaint to be made by the complainant’s lawyer or agent, thus accommodating corporate complainants who must act through a human agent.

[22] The learned judge was, with respect, right to conclude that Mr Maudsley could have commenced the prosecution in his own name.  The conclusion, however, ignored the express basis on which he himself described the capacity in which he commenced the prosecution. He was, he said, a public officer for the purposes of the Justices Act; he was agent for and was acting on behalf of the Council in laying the complaint.  The authorised act of an agent is the act of the principal and normally the agent comes under no personal liability in respect of it.  The consequences of the agent’s authorised acts attach to the principal. The prosecution was, in other words, the Council’s and not Mr Maudsley’s. He was not prosecuting in a private capacity but instituting the Council’s prosecution. These facts and the requirement of s 35 of the LG Act should have led the judge to conclude that the complaint was defective and to order its amendment. Instead his Honour concluded that because Mr Maudsley had made the complaint and because he could do so in a personal capacity pursuant to s 42 of the Acts Interpretation Act he should be taken to have done so. The conclusion was, I think, an error.

[underlining added]

137. [33]
     The appellant relies on the underlined passage as supporting its approach to identification of the ‘true’ complainant in this case.  The appellant relied on two other cases: Steiner v Seri [2012] QCA 226 and Garrett v Freeman (2006) 68 NSWLR 729.  Oral argument focussed on the latter.  In that case, the question arose as to whether a summons commencing a prosecution for an environmental offence which was brought in the name of “Steven Garrett for an on behalf of the Director-General” of the relevant department comprised legal proceedings for an offence against the relevant Act by a person duly authorised by the Director-General or was rather proceedings brought by the Director-General herself.  The point arose in this way:

[30]  At the hearing, it was submitted on behalf of the appellant that the proceedings were defective, because they had been taken otherwise than in accordance with the requirements of the National Parks and Wildlife Act and in particular s 179. Section 179 of the Act provides, so far as is relevant, that any legal proceedings for an offence against the Act “may only be taken by a police officer or by a person duly authorised by the Director-General [of National Parks and Wildlife] in that behalf, either generally or in any particular case”. It was submitted that on the proper interpretation of s 179 proceedings for an offence against the Act can be taken only by a police officer or by a person authorised by the Director-General and cannot be taken by the Director- General herself. However, it was submitted, both of the proceedings had been taken by the Director-General and not by Mr Garrett.

138. [34]
     The trial judge found that the words referring to the Director-General were mere surplusage and that the proceedings had been taken by Mr Garrett.  The New South Wales Court of Criminal Appeal found to the contrary.  James J, with whom McColl JA and Grove J agreed, held:

[113] In the present case, before the summonses were amended the prosecutor was described in each summons as “Stephen Garrett for and on behalf of the Director-General of the Department of Environment and Conservation”. I do not consider that the words “for and on behalf of the Director-General of the Department of Environment and Conservation” occurring in the description of the prosecutor can be discarded as mere surplusage. In my opinion, the natural interpretation of the words “for and on behalf of” is that they are words of agency and that the proceedings should be regarded as having been taken by Mr Garrett as an agent on behalf of a principal, the Director-General, and hence the proceeding should be regarded as having been taken by the Director- General. 

139. [35]
     Third, the appellant recognised the line of authority referred to in paragraph [41] below based on Peebles and the other cases there cited which hold that where an individual swore a complaint as public officer of a public body, provisions analogous to s. 173A(1)(b) apply to the knowledge of the complainant officer, not the knowledge of the public body to which the complainant belongs.  The appellant submits that those authorities are distinguishable.  The appellant submits its case is that the true complainant is the BCC, and that those authorities then apply here because the BCC is in fact the complainant.  The appellant contends that its argument based on Dixonbuild raises an anterior question to that which arises in the Peebles cases and can be read consistently with them in that way.

Respondent’s submissions

140. [36]
     The respondent raised the following points in response.
141. [37]
     First, the respondent pointed out that the complaint does not use the words relied upon in by the Court in Dixonbuild (“as authorised agent for and on behalf of”) nor the words relied upon in Garrett (“for and on behalf of”).  Rather, the complaint states that Ms Browning is “a delegate and authorised officer acting in his [sic her] representative capacity”.  
142. [38]
     Second, the complaint identifies Ms Browning expressly as being a public officer as defined by the Justices Act.   Section 4 defines public officer as follows:

public officer means—

1. (a)
   an officer or employee of the public service of the State or the Commonwealth; or
2. (b)
   an officer or employee of a statutory body that represents the Crown in right of the State or the Commonwealth; or
3. (c)
   an officer or employee of a local government;

who is acting in an official capacity.

143. [39]
     The respondent submitted that the description in the complaint was properly understood as asserting matters which confirm the claimed status as a public officer, rather than creating a different and distinct agency basis for bringing the complaint. 
144. [40]
     Third, each charge contains a statement that the offence came to the complainant’s notice on a given day, being 22 April 2020.  The respondent submits that that statement was plainly a reference to the knowledge of the person described as the complainant in the complaint itself, not the BCC.  This is said to be a relevant factor in the objective construction of the capacity in which the complaint was brought by Ms Browning.  This is said to be particularly significant given the importance of that allegation to proof of the case under s. 173A(2) Planning Act.
145. [41]
     Fourth, the respondent submitted that the cases recognise in plenary terms that where a public officer brings proceedings, it is the public officer who is the complainant (and seemingly it is contended then that Dixonbuild is inconsistent with this line of authority). 
146. [42]
     The respondent relied primarily on Cross Country Realty v Peebles [2007] 2 Qd R 254 (Peebles).   That case involved a prosecution by a complainant who was an officer of the Office of Fair Trading.  The appellant argued that a cognate provision to s. 173A(1)(b) Planning Act could not be relied upon by Mr Peebles if any officer in the public authority involved (there the Office of Fair Trading) had the relevant knowledge.  The Court of Appeal rejected that submission.  McMurdo P (with whom Keane JA and Chesterman J agreed) explained the position as follows:

[8] The applicants now contend that the judge has misinterpreted a significant provision of an important statute so that leave to appeal to this Court should be granted to ensure that this error is not repeated in future prosecutions under the Act. They argue that the complaints were outside the time constraints imposed by s. 589(1)(b) because time runs under that provision as soon as anyone in the OFT entitled to lay the complaints has reasonable grounds to believe the applicants have committed an offence under the Act. In support of that submission they refer to the following observations of W. B. Campbell J. (as he then was) concurring with the Act’s predecessor, the Auctioneers and Agents Act 1971, in Smith v. Baldwin, ex parte Smith:

“In any event, there is not one jot of evidence to show that any person who may have been authorised under the Act to lay a complaint either had knowledge, or had, or should have had, reasonable grounds to believe, prior to August 1, 1977, that the respondent had committed an offence. Consequently, whether or not there may be some situations, where a person who lays a complaint should be deemed to have had, the prior knowledge possessed by his servant or agent does not arise for consideration here.”

[9] Those observations were not central to the decision in Smith and are therefore not binding on this Court. In any case they relate to a different although similar provision under a different although similar statute. The High Court has repeatedly emphasised the need when interpreting and applying a statutory provision to look at the language of the statute rather than secondary sources or materials: Weiss v. The Queen. Proceedings under the Act may be brought summarily under the Justices Act 1886. Under the Justices Act s. 142A, complaints under the Act can be brought by a “public officer”, a broadly defined term which includes “an officer or employee of the public service of the State ...”. Both Mr Peebles and Mr Cushion were public officers entitled to bring complaints under the Act. But the complainant in each of the complaints the subject of this application was not Mr Cushion but Mr Peebles. The plain words of s. 589 require only that the proceeding for an offence against the Act be taken within one year after the offence is said to have been committed (s. 589(1)(a)) or six months after the commission of the alleged offence comes to the complainant’s knowledge as long as that is within two years after the commission of the alleged offence (s. 589(1)(b)). Giving the words in s. 589(1) their ordinary meaning, the term “complainant” in s. 589(1)(b) means the complainant who brings the proceedings for an offence or offences under the Act, here Mr Peebles. That interpretation, which still places firm temporal limits on bringing proceedings within, at the maximum, two years after the alleged commission of the offence, is consistent with the objects of the Act set out in s. 10. It is also consistent with Holmes J.’s observations about similar provisions in the Auctioneers and Agents Act in Foxpine Pty Ltd v. Collings, with which Davies J.A. and I agreed, and with Williams J.’s approach taken to different but analogous statutory provisions in Ayres v. WorkCover Queensland.

[underlining added]

147. [43]
     The respondent also relied on United Petroleum Pty Ltd v Sargent [2019] QDC 93, Whitheyman v Van Riet [2008] 2 Qd R 587, Stone v Guli [2020] QCA 288 and Baker v Smith [2021] QCA 66 which the respondent submitted adopted and applied the approach in Peebles.  
148. [44]
     Fifth, the respondent also sought to distinguish Dixonbuild and Garrett on the basis that the cases were concerned with different legal contexts to this. 

Analysis

The authorities

149. [45]
     Can Dixonbuild be read with the Peebles line of authority in the manner contended for by the appellant in paragraph [35] above?  The cases do not assist directly in resolving that question because:

     1. (a)
        Peebles and Whitheyman v Van Riet were decided before Dixonbuild, but were not considered in Dixonbuild; and

     2. (b)
        Stone v Guli [2020] QCA 288 and Baker v Smith [2021] QCA 66 were decided after Dixonbuild, but that case was not considered in either of those later decisions.  
150. [46]
     (Both cases were considered in the decision of this Court in United Petroleum Pty Ltd v Sargent [2019] QDC 93, to which I will come.)
151. [47]
     It is necessary to analyse the cases relied upon by the parties.  I start with Peebles.   Although the complaint is not set out in the judgment, it is evident from the reasons that:

     1. (a)
        Mr Peebles brought the prosecution as a Public Officer under the Justices Act and as such, an officer of the Office of Fair Trading; and

     2. (b)
        The Court of Appeal concluded that on the facts of the case, Mr Peebles was the complainant who brought the proceedings for the offence for the purposes of applying a limitations provision like s. 173A(1)(b).  In that case, s. 589(1) Property Agents and Motor Dealers Act 2000.
152. [48]
     The ratio of the decision in my opinion is underlined in the passage in paragraph [42] above.  In context, that amounts to a statement that where a public officer brings a complaint, the complainant is the public officer not the public authority he or she represents.
153. [49]
     Withyman v van Riet is of no assistance.  There was no dispute in that case that the complainant for the purposes of assessing knowledge under s. 68(3)(b) Vegetation Management Act 1999, (a provision in similar terms to s. 173A(1)(b)) was Mr Withyman.  The report of the case does not identify whether he brought the complaint as a public officer.  The case was concerned with whether knowledge of the offence required knowledge of the identity of the offender.^[10]  The same is true of Baker v Smith^[11] in the Court of Appeal, where the issue was not concerned with identifying the correct person for the purposes of applying a provision like s. 173A(1)(b), but rather with the evidence on the state of knowledge of that person at the relevant time.  Indeed the application for leave in that case was conducted accepting that Mr Smith was the complainant: see [80] of the judgment.
154. [50]
     Steiner v Serri [2012] QCA 226 is the next case to consider.  In that case, Mr Steiner was found guilty in the Townsville Magistrates Court on 27 January 2011 of failing to comply with s 235 Building Act 1975 by failing to ensure the fencing around his pool complied with the fencing standards. He was fined $700 without conviction and ordered to pay $75.90 costs of court and the complainant's professional costs of $1,500.  He appealed to this Court unsuccessfully and sought leave to appeal to the Court of Appeal.   The relevant ground of appeal to this proceeding was his contention that the Magistrate erred in ordering the appellant to pay the Townsville City Council's costs.
155. [51]
     Section 157 Justices Act provides in effect that in all cases of summary convictions and orders the Court may order that the defendant shall pay to the complainant such costs as seem just and reasonable.  Mr Steiner’s contention was that the complainant was Mr Seri not the Council. Under s 157 Justices Act the magistrate had a discretion to order Mr Steiner to pay the complainant's just and reasonable costs, that is, Mr Seri's costs. Mr Seri did not incur any costs; all legal costs were incurred by the Council.  As a result Mr Steiner argued he was not liable to pay the costs.  
156. [52]
     Mr Seri commenced the complaint in which he described himself as "a person duly authorised pursuant to the Local Government Act 1993 and being a 'Public Officer' as defined in the Justices Act". There were no words of agency it seems, though the relevant Act provided for, relevantly, an employee of a council to be authorised to act as the authorised agent for the council and to sign all documents for the council.
157. [53]
     President McMurdo (with whom Muir JA and Henry J agreed) considered various possible interpretations of the relevant statutory provisions and the form of the complaint in seeking to determine whether the Magistrate could order the costs of the Council, despite Mr Seri being identified as the complainant and as a public officer in the complaint.  Ultimately, however, her Honour resolved the matter by reference primarily to the forensic basis upon which the case had been conducted^[12] (footnote omitted):

The trial was conducted on the basis the complainant was the Townsville City Council. Counsel for the prosecution established Mr Steiner's guilt of the offence beyond reasonable doubt. Costs orders are intended to be compensatory in the sense that they are to indemnify a successful complainant for the costs for which the complainant is liable. On the way this trial was conducted, the complainant was the Council. If the complainant was in truth Mr Seri, he brought the complaint with the authority of the Council, so that the Council was liable to pay any costs he incurred as complainant. I remain unpersuaded that Mr Steiner has suffered any prejudice resulting from the costs order, or that it was made in error, or that it has caused any injustice

158. [54]
     Given the basis that her Honour decided the point, I do not think this case favours Mr Vukolic’s submission.  I note two other matters.  Firstly, while Dixonbuild was referred to by her Honour, the issue which arises in this case was not considered: see [50] of the President’s judgment.  Second, more recent Court of Appeal authority establishes that the concern raised in Steiner is unnecessary to resolve by technical argument on who the true complainant might be where the complainant is a public officer.  In Baker v Smith, the Court of Appeal held that costs of a statutory body represented by a public officer did not have to have been incurred by a complainant public officer to be within the scope of the power to order costs under s. 157 Justices Act: see [85] of the judgment.
159. [55]
     Stone v Guli [2020] QCA 288, however, is another matter entirely.  In that case the appellant, Mr Stone, swore complainants under the Justices Act against two respondents alleging offences against the Mining and Quarrying Safety and Health Act 1999 (MQSHA).  The complaint relevant for present purposes provided:

THE COMPLAINT OF MARK DOUGLAS STONE…a public officer within the meaning of section 142A of the Justices Act and a person delegated the powers of the Chief Executive under section 257(1) of the [MQSHA], made this 22^nd day of September 2017…who says that…

160. [56]
     The issue which arose was whether the complaint was lawfully sworn by Mr Stone as a delegate of the Chief Executive as recited in the complaint.  That issue fell to be determined by construing two provisions in the MQSHA:

     1. (a)
        Section 257(1) permitted the Chief Executive to delegate his or her powers under the MQSHA to a public service officer.  That was the section relied upon to commence the complaint by Mr Stone; and

     2. (b)
        Section 234(5) relevantly provided that proceedings for an offence against the MQSHA could only be taken by the chief executive or someone authorised in writing by him or her.  Section 234(5) was construed as excluding the default position under s. 42 Acts Interpretation Act that permits any person to take proceedings under any Act and replaced it with a limited class of persons who could take proceedings, relevantly, the Chief Executive or a person authorised by him or her.
161. [57]
     Justice Davis (with whom McMurdo JA and Mullins JA agreed) noted that there was a clear distinction in principle between the character of a delegation under s. 257(1) as construed under s. 27A Acts Interpretation Act 1954 and an authorisation under s. 234(5):

     1. (a)
        Under the former, an act by the delegate under s. 257(1) was taken to have been done by the delegator, the Chief Executive.  That is, the act of swearing the complaint by Mr Stone was taken to be the act of the Chief Executive; 

     2. (b)
        Authorisation under s. 234(5), on the other hand, was construed by his Honour as vesting by the power of the Chief Executive to commence proceedings by the person authorised to do so.  In that case, the commencement of the proceedings by the complaint was the act of person swearing the complaint, not the act of the Chief Executive.
162. [58]
     His Honour explained this as follows:

[82] When the written authority is given the power being exercised when the complaint is sworn is not the power of the chief executive but is the power vested in the person authorised by s 234(5)(c) to exercise the power which he has. Therefore, he or she swears a complaint in his or her name, participates in the criminal proceeding in his or her name and bears the consequences of acting in that capacity as a complainant.

[83] Section 234(5)(b) operates so the chief executive is not affected by the prohibition in s 234(5). He is free, because of the exemption in s 234(5)(b) to exercise his right to swear a complaint under s 42 of the Justices Act and to prosecute the complaint in his name. He may, by s 234(5)(c), authorise another to exercise their right to do likewise. He may not, under s 257, delegate the right to take proceedings which s 234(5)(b) gives him. A person swearing a complaint does not do so in the name of or in the exercise of a power or right of another. They do not do so as a delegate, in the sense explained in s 27A of the Acts Interpretation Act.

[84] Section 257 contemplates a delegation of power so that the person to whom the power is delegated exercises the power of the chief executive. It does not contemplate the authorisation of the exercise of a power which is not a power of the chief executive.

[underlining added]

163. [59]
     What, it might be fairly asked at this point, is the relevance of all of this?  The answer lies in the way Justice Davis reasoned to his conclusion that the complaint was invalid.  In summary, his Honour analysed the relevant provisions of the Justices Act^[13] to conclude that a complainant, including a complainant bringing proceedings as a Public Officer, is personally a party to the proceedings.  The consequence was that the complaint was invalid because the effect of making the complaint as a delegate was to make the complaint the act of the Chief Executive.  However, the Chief Executive could not be the complainant if he or she was not the person who in fact made the complaint.  As his Honour explained in [83] above, “a person swearing a complaint does not do so in the name of or in the exercise of a power or right of another”.
164. [60]
     It is useful to set out his Honour’s full analysis (footnotes omitted):

[72] Section 42 of the Justices Act provides:

“42 Commencement of proceedings

5. (5)
   Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.

(1A) However, where a defendant is present at a proceeding and does not object, a further charge or an amended charge may be made against the defendant and be proceeded with although no complaint in writing has been made in respect thereof.

6. (6)
   Where a defendant has been arrested on any charge and no complaint in writing has been made and in a case to which subsection (1A) applies particulars of the charge against the defendant shall be entered on the bench charge sheet.”

[73] A “public officer” is defined by the Justices Act as:

“public officer means—

1. (a)
   an officer or employee of the public service of the State or the Commonwealth; or
2. (b)
   an officer or employee of a statutory body that represents the Crown in right of the State or the Commonwealth; or
3. (c)
   an officer or employee of a local government; who is acting in an official capacity.”

[74] Public officers are afforded various powers and procedural advantages under the Justices Act. However, nothing in these provisions derogates from the right of any citizen to swear a complaint under s 42 and thereby “take proceedings”. 

[75] Therefore, proceedings can be commenced or “taken” in one of three ways:

1. by arrest of the defendant without warrant;
2. by the making of a complaint; or
3. by means “otherwise expressly provided”.

[76] A complaint may commence a criminal proceeding in one of two ways. The complaint may found the issue of an arrest warrant or, as here, cause a Justice of the Peace to issue a summons pursuant to s 53. Various provisions of other legislation “otherwise expressly provide” for the commencement of proceedings, most notably the Police Powers and Responsibilities Act 2000. Those provisions need not be considered here.

[77] A complainant (including one who is a “public officer”) is personally a party to the proceeding commenced. Various provisions apply specifically to proceedings commenced by complaint made by a public officer. In Cross Country Realty Pty Ltd v Peebles, the complainant, Mr Peebles, was an officer employed by the Office of Fair Trading. He swore a complaint alleging summary offences against the Property Agents and Motor Dealers Act 2000. A provision of that Act limited the time for commencement of proceedings to one year after the commission of the offence or “six months after the commission of the offence comes to the complainant’s knowledge”. There was good evidence that the fact of the commission of the offence came within the knowledge of the department which employed Mr Peebles (a public officer) within one year but did not come within Mr Peebles’ knowledge until much later.

[78] In holding that the proceeding was commenced in time, this court held:

         “…Proceedings under the Act may be brought summarily under the Justices Act 1886. Under the Justices Act s 142A, complaints under the Act can be brought by a ‘public officer’, a broadly defined term which includes ‘an officer or employee of the public service of the State …’. Both Mr Peebles and Mr Cushion were public officers entitled to bring complaints under the Act. But the complainant in each of the complaints the subject of this application was not Mr Cushion but Mr Peebles. The plain words of s 589 require only that the proceeding for an offence against the Act be taken within one year after the offence is said to have been committed (s 589(1)(a)) or six months after the commission of the alleged offence comes to the complainant’s knowledge as long as that is within two years after the commission of the alleged office (s 589(1)(b)). Giving the words in s 589(1) their ordinary meaning, the term ‘complainant’ in s 589(1)(b) means the complainant who brings the proceedings for an offence or offences under the Act, here Mr Peebles…”

[79] The personal nature of the position of a complainant can also be seen in relation to the liability for costs. In Latoudis v Casey, proceedings were brought under the Magistrates (Summary Proceedings) Act 1975 (Vic) whose provisions were relevantly equivalent to ss 42 and 53 of the Justices Act. Like in Queensland, there was a power to award costs against an unsuccessful complainant. The defendant successfully defended the charge and secured an award of costs. That was subject to appeal. Questions arose as to whether the complainant could claim the protection of the principle that the Crown does not generally receive or pay costs. Brennan J observed:

           “A police officer who, in the ordinary course of his duties, commences a prosecution against a defendant is serving the public interest, not his own. Yet he is the defendant’s adversary in the prosecution and an order for payment of the defendant’s costs must be made against him personally, or not at all.” (emphasis added)

And Dawson J:

           “… a police informant remains personally liable as a matter of law to pay any costs awarded against him that an order for costs may be, and commonly is, regarded as a means of penalizing or discouraging any improper or unreasonable behaviour on an informant’s part in the conduct of the proceedings. Matters such as the failure properly to investigate a matter, lack of good faith in bringing the proceedings, or the failure to prosecute the proceedings in a proper manner may warrant the making of an order for costs against a police informant.”

[80] Appeals come to the District Court against orders made on a complaint by a magistrate. The right of appeal vests personally in the complainant. Section 222 provides:

        “222 Appeal to a single judge

1. (1)
   If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”(emphasis added)

[81] These provisions demonstrate that it is the complainant who is empowered by the Justices Act to “take proceedings” by swearing a complaint in his or her name and then prosecuting the complaint in his or her name.

165. [61]
     During that analysis, his Honour cited Peebles as authority for the proposition that the position of complainant is personal in nature: see [77] of the judgment.
166. [62]
     In my respectful view, that analysis is implicitly inconsistent with Dixonbuild.  The ratio of Dixonbuild is that by commencing a complaint in his own name and as Public Officer of Ipswich City Council, but also expressly as agent for Ipswich City Council, the complainant in the proceedings was not the person who swore the complaint, but rather another entity, the Council, for whom Mr Mausdley was acting as agent.  In effect, Dixonbuild held that Mr Maudsley had brought about the same situation as had Mr Stone, albeit by operation of the common law of agency rather than the statutory delegation.  The fact that a third party not named as complainant was said to become the complainant by the law of agency not by delegation is a distinction without a difference.  In my respectful view,  Stone establishes that someone other than the identified public officer complainant cannot validly be the complainant, Dixonbuild says that it can.
167. [63]
     One way that the two cases can be reconciled is to see Dixonbuild as an example of a complaint of the kind provided for in s. 42(1), where the complaint’s lawyer or other authorised person.  This might work on the facts of Dixonbuild, given that Mr Maudsley expressly identified himself as complainant as authorised agent for Ipswich City Council.  However, there are three reasons why I think that approach is incorrect:

     1. (a)
        First, it is not the basis of the express reasoning in Dixonbuild, which relied on the general law of agency;

     2. (b)
        Second, it seems to me that where a complaint is commenced by an agent under s. 42(1), it is arguable that the complaint should disclose that expressly or by necessary implication, with the complainant identified as the principal, by the agent. So for Dixonbuild, that would have been in this form “Ipswich City Council, by its agent Mr Maudsley…” That was not the form of the complaint in Dixonbuild; and
     3. (c)
        Third, even if the second point is incorrect, where the complaint was commenced by Mr Maudsley as public officer, that will pick up s. 142A(1) Justices Act which plainly contemplates that the complaint is by the identified public officer, not someone else, as Justice Davis held in Stone.
168. [64]
     As I have said, in my view, Dixonbuild is implicitly inconsistent with Stone.  In that situation, I would be inclined to follow the more recent decision, particularly as I prefer the reasoning of Davis J.  It seems to me inherently inconsistent to treat a named complainant as an agent in the strict common law sense where the complainant sues expressly as public officer.  In that case, he or she is invoking an expressly statutory standing based on their employment or office with a statutory body.  As will be seen, however, it is unnecessary to resolve the matter on that basis because for other reasons, I consider this case falls within the scope of Stone rather than Dixonbuild in any event.
169. [65]
     Before leaving my analysis of the authorities, I should deal with two more cases.
170. [66]
     The first is United Petroleum v Sargent [2019] QDC 93, a decision of Judge Jarro of this Court.  In that case his Honour was dealing with an appeal from a decision of a Magistrate not to stay a complaint alleging four offences under the Environmental Protection Act 1994.  The stay was based, relevantly, on an allegation that the complaint had been brought out of time.  As in this case, there was an Environmental Protection Order issued by other officers of the relevant department at a time which made the charges apparently out of time.  The relevant section was s. 497 EPA which was, for present purposes, substantively the same as s. 173A.  The complainant relied on the second limb of s. 497, analogous to s. 173A(1)(b) Planning Act.
171. [67]
     His Honour explained the context in which the issue arose as follows:

[29] In the present instance, the complaint reads as follows:

“The complaint of CAMERON JAMES SARGENT of the Department of Environment and Heritage Protection, 173 Hume Street, Toowoomba, in the State of Queensland, a public officer under the Justices Act 1886 made this 23rd day of October 2014 before the undersigned, a Justice of the Peace for the said State, who says that:…”

[30] The written complaint made by Mr Sargent on 23 October 2014 alleged four contraventions of the EPA. The complaint recorded that the offences came to Mr Sargent’s knowledge on 23 October 2013. Accordingly, and on the face of it, having regard to the wording of s 497(b) of the EPA, the complaint made by Mr Sargent in person was made within the requisite time.

[31] However the appellant submitted that because Mr Sargent is a public officer, acting in his capacity/authority under the EPA, he is not a complainant in person acting in a private capacity. Rather the appellant focusses upon the complaint made by “another person authorised in that behalf”.

[32] In doing so, reliance was placed on the authority of Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98. It was submitted the complaint in that matter was not in dissimilar language to the complaint made 23 October 2014 in this proceeding, namely that:

“THE COMPLAINT OF CRAIG MAUDSLEY CHIEF OPERATING OFFICER (HEALTH, PARKS AND RECREATION) of IPSWICH CITY COUNCIL … a “public officer” as defined in the Justices Act 1886 … made this day of 14 January 2010, as authorised agent for and on behalf of IPSWICH CITY COUNCIL before … a Justice of the Peace … who says that:….”

[33] In Dixonbuild, Chesterman JA considered that “there can … be no doubt that Mr Maudsley’s act in swearing the complaint was the act of the Council”.

172. [68]
     His Honour rejected the submission, reasoning as follows:

[34]  Mr Sargent’s act in swearing the complaint was as a public officer. But in my view and adopting the wording of s 42 of the JA, Mr Sargent could also be construed to be “the complainant in person”. He is not strictly acting in a private capacity. Yet my reading of s 42 in the present circumstances does not mean “the complainant in person” is necessarily a person who is pursuing a complaint in a private capacity. Indeed, Mr Sargent is a public officer and he is permitted, under the JA, to bring the prosecution in the way that he has.

[35]  As was the case in Dixonbuild, the provisions of the Local Government Act 2009 applied. The learned magistrate correctly noted that Dixonbuild dealt with a materially different statutory environment in which the Local Government Act 2009 required particular kinds of prosecutions to be taken in the name of the relevant local authority. In my view the statutory regime does not permit prosecutions to be taken in the name of the department for the alleged offences. Further names of government departments change over time. In fact the respondent raised the point that the Department of Environment and Heritage Protection (as described by Mr Sargent in his complaint) has since been renamed the Department of Environment and Science. Additionally Mr Maudsley in Dixonbuild described himself in the complaint as “an authorised agent for and on behalf of the Ipswich City Council” which I consider to be a material difference to the complaint made by Mr Sargent in the present instance. Dixonbuild dealt with the question by and to whom costs were payable. The issue of the time limit within which to bring the prosecution was not considered. I consider Dixonbuild does not assist the appellant in the present instance.

[underlining added]

173. [69]
     His Honour’s underlined analysis in [34] of the judgment is in my opinion consistent with my own in paragraph [64] above and indeed, the analysis of Davis J as I have explained it in paragraph [59].  I am fortified in my approach to Dixonbuild by the fact that my approach is substantively consistent with his Honour’s reasoning.
174. [70]
     The next case to deal with is Garrett v Freeman, relied upon by the appellant.    The case supports the approach in Dixonbuild, as is evident from the analysis of James J set out in paragraph [34] above. However, I do not consider that as persuasively favouring the appellant for the following reasons:

     1. (a)
        First, it arose in quite a different statutory context.  Most importantly, it does not appear that the complaint was brought by Mr Garrett as a proper officer under a statutory regime providing for bringing a complaint in that capacity;

     2. (b)
        Second, the language in that complaint is materially different from that in the complaint here (as I explain further below); and
     3. (c)
        Third, with respect it seems to me that to limit the analysis of the significance of the words in question to whether or not they could be ignored as surplusage was to take a rather narrow approach to the matter.  It was not suggested that Mr Garrett was not in fact authorised to bring the proceeding as required by the relevant statute.  If that fact was correct (or not cavilled with), it seems to me that it would be open to give a meaning to the words in dispute as being objectively intended to refer, albeit clumsily, to the fact that Mr Garrett was acting under such an authority and not as a private citizen.  A fortiori where there seemed to be no public officer provision (or none relied upon).

Ms Browning is the complainant

175. [71]
     In my respectful view, Ms Browning was the complainant.  I hold that view for the following reasons.
176. [72]
     First, as explained above, Dixonbuild does not compel me to conclude that Ms Browning was starting a complaint by BCC.  Rather, the more recent and in my view more persuasive authority in Stoner supports the opposite conclusion where Ms Browning has commenced proceedings in her own name expressly identified as public officer.  The only other authority favouring Mr Vukolic’s analysis is Freeman, which is distinguishable and the only persuasive authority in any event.
177. [73]
     Second, even if Dixonbuild was applied, Ms Browning’s complaint does not use the magic words, “as agent for” nor even the words, “for and on behalf of”.  She does not use any express words apt to identify that she was commencing a complaint by BCC, through her as its authorised human agent. 
178. [74]
     Ms Browning was described in a letter sent by City Legal in November 2020 as having commenced proceedings as public officer for and on behalf of BCC.  However, Mr O'Brien KC (who appeared with Mr Wylie for the appellant) disavowed reliance on that letter as relevant to construing the capacity in which Ms Browning made the complaint and, in any event, the letter does not use the word agent or agency.  It was also accompanied by the statement that the complaint was not in the name of BCC.^[14]  (This distinction has some significance when considered in the light of s. 218(2) City of Brisbane Act.)  Even if it was considered in objectively identifying the “true” complainant, I do not think it would assist the appellant.
179. [75]
     Third, I am not persuaded that the effect of the words “being a “public officer: as defined by the Justices Act 1886, as amended, and a delegate and authorised officer acting in his [sic her] representative capacity” are such as to constitute Ms Browning a person commencing proceedings for BCC as principal through her as agent as contemplated by s. 42(1) Justices Act:

     1. (a)
        The use of the words public officer stand directly against that.  As explained by Justice Davis in Stoner, it is in the nature of a complaint as a public officer that the person making the complaint is doing so in general terms on behalf of, or as representative of, the statutory body of which they are an officer or employee.  To my mind, identification as a public officer tells strongly against the conclusion that looked at objectively, the complaint is commenced not by the complainant named but some other complainant that the public officer is linked to;

     2. (b)
        Looked at in that context, the words “and a delegate and authorised officer acting in his [sic her] representative capacity” being an officer of the section of BCC described in the complaint, objectively identifies the kind of public officer Ms Browning is and the local authority to which she is attached.  These words are not surplusage, albeit that they might not be strictly necessary.  They are words of explanation of the claim in the complaint of public officer status; and
     3. (c)
        The word primarily relied upon by Mr O'Brien KC is “representative”, but looked at in context, it is unremarkable to describe bringing proceedings in a person’s own name as public officer as doing so as representative of the local authority in respect of which the complainant is acting as public officer.
180. [76]
     Ms Browning was the complainant for the purposes of s. 173A(1)(b).  Accordingly, the complaint was brought within time and the first ground of appeal fails.

Ground 2: The elements of the offence

The issues

181. [77]
     Section 163 Planning Act provides:

163  Carrying out assessable development without permit

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

Maximum penalty –

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

otherwise – 4500 penalty units.

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

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

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

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

182. [78]
     The appellant’s contentions on this ground have a legal and a factual component:

     1. (a)
        As to the law, the appellant contends that on the proper construction of s. 163, the three matters in section 163(2) are elements of the offence created by s. 163 with the consequence that the prosecution must exclude beyond reasonable doubt that the prohibition in 163(1) does not apply to the assessable development for any of three the circumstances in s. 163(2). 

     2. (b)
        As to the facts, the appellant contends that the complainant did not adduce evidence capable of excluding the three circumstances in s. 163(2) beyond reasonable doubt.             
183. [79]
     The respondent ripostes as follows:

     1. (a)
        The three matters in section 163(2) are not elements of the offence, but rather exculpatory matters which do not have to be excluded by the complainant unless they are raised on the evidence;

     2. (b)
        In the alternative, if the appellant’s construction is correct, the circumstances in s. 163(2) were excluded beyond reasonable doubt on the evidence at trial; and
     3. (c)
        In the further alternative, even if they were not so excluded, the appellant ought to have leave to re-open its case on the appeal to lead evidence in the form of an evidentiary certificate^[15] which in terms excludes those circumstances beyond reasonable doubt.
184. [80]
     The appellant resists leave to re-open the prosecution case on the basis that it would be unfair to permit that to occur in circumstances where the prosecution could have led that evidence at trial and did not do so.
185. [81]
     Three issues therefore arise:

     1. (a)
        First, are the circumstances listed in s. 163(2) elements of the offence created by that section?

     2. (b)
        Second, if they are, have they been excluded beyond reasonable doubt on the evidence at trial?
     3. (c)
        Third, if not, should the prosecution be given leave to re-open its case on appeal to tender the evidentiary certificate?

Statutory provisions

186. [82]
     It is convenient first to set out the relevant provisions.  It is best to start with Chapter 5, “Offences and Enforcement”.
187. [83]
     Chapter 5 Part 1, Introduction, relevantly provides:

106  What this chapter is about

1. (1)
   This chapter is about offences against this Act, including development offences, and ways to prevent or remedy the effect of those offences.

2. (2)
   Part 2 creates development offences.
3. (3)
   Part 3 is about notices from an enforcement authority requiring a person to refrain from committing a development offence, or to remedy the effect of a development offence.
4. (4)
   Part 4 is about proceedings in a Magistrates Court for development offences and other offences against this Act.

188. [84]
     Chapter 5 Part 2, Development Offences, relevantly provides:

     1. (a)
        By s. 161:

161  What part is about

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

2. (b)
   By s. 162:

162  Carrying out prohibited development

A person must not carry out prohibited development, unless—

1. (a)
   the development is carried out under a development approval given for a superseded planning scheme application; or
2. (b)
   the local government for the area in which the development is carried out has agreed, or is taken to have agreed, to a request under section 29(4)(b) for the development.

Maximum penalty—4,500 penalty units.

3. (c)
   By s. 164 and 165:

164  Compliance with development approval

A person must not contravene a development approval.

Maximum penalty—4,500 penalty units.

165  Unlawful use of premises

A person must not use premises unless the use—

1. (a)
   is a lawful use; or
2. (b)
   for designated premises—complies with any requirements about the use of the premises in the designation.

Maximum penalty—4,500 penalty units.

4. (d)
   By s. 166(1) and (2), relevantly:

166  Exemptions if emergency causing safety concern

1. (1)
   This section applies to works, development or a use (an activity) carried out because an emergency endangers—

   1. a person’s life or health; or
   2. a building’s structural safety; or
   3. the operation or safety of infrastructure, other than a building; or
   4. for tidal works—the structural safety of a structure for which there is a development permit for operational work that is tidal works.

2. (2)
   A person who, in an emergency, is carrying out necessary operational work that is tidal works does not commit a development offence, other than an offence against section 162, if the person—

   1. has made a safety management plan for the works, after considering—

   1. the long-term safety of members of the public who have access to the works or a structure to which the works relate; and
   2. if practicable, the advice of a registered professional engineer who has audited the works or structure; and

   2. complies with the plan; and
   3. gives a copy of the plan to the enforcement authority as soon as reasonably practicable after starting the works; and
   4. takes reasonable precautions and exercises proper diligence to ensure the works or a structure to which the works relate are in a safe condition, including by engaging a registered professional engineer to audit the works or structure.

5. (e)
   Section 166(3) and (4) contains further provisions articulating circumstances where a person does not commit a development offence then continues;

166  Exemptions if emergency causing safety concern

5. (5)
   Subsections (2), (3) and (4) stop applying to a person carrying out an activity if an enforcement notice or order requires the activity to stop.
6. (6)
   Subsections (2) and (3) stop applying to a person carrying out the activity if—

   1. the person does not, as soon as reasonably practicable after starting the activity—

   1. make a development application that, but for the exemption, would be required for the activity; and
   2. give a notice of a type mentioned in subsection (4); or

   2. the person complies with paragraph (a), but the person’s development application is refused.

189. [85]
     Chapter 5 Part 3, Enforcement notices, relevantly provides:

     1. (a)
        By s. 167 for a show cause process;

167  Show cause notices

1. (1)
   This section applies if an enforcement authority—

1. (a)
   reasonably believes a person has committed, or is committing, a development offence; and
2. (b)
   is considering giving an enforcement notice for the offence to the person.

2. (2)
   The enforcement authority must give the person a notice (a show cause notice) that—

   1. states the enforcement authority is considering giving an enforcement notice to the person; and
   2. outlines the facts and circumstances that form the basis for the enforcement authority’s reason for giving an enforcement notice; and
   3. states the person may make representations about the notice to the enforcement authority; and
   4. states how the representations may be made; and
   5. states—

2. (ii)
   a day and time for making the representations; or
3. (iii)
   a period within which the representations must be made.

3. (3)
   The day or period stated in the show cause notice must be, or must end, at least 20 business days after the notice is given.
4. (4)
   After considering any representations made by the person as required under the show cause notice, the enforcement authority may give the enforcement notice if the enforcement authority still considers it appropriate to do so.
5. (5)
   An enforcement authority need not give a show cause notice to the person, before giving the person an enforcement notice, if—

   1. the development offence relates to—

4. (iv)
   a Queensland heritage place or a local heritage place; or
5. (v)
   works that the enforcement authority reasonably believes are a danger to persons or a risk to public health; or
6. (vi)
   the demolition of works; or
7. (vii)
   the clearing of vegetation; or
8. (viii)
   the removal of quarry material allocated under the Water Act 2000; or
9. (ix)
   extracting clay, gravel, rock, sand or soil, not stated in subparagraph (v), from Queensland waters; or
10. (x)
    development that the enforcement authority reasonably believes is causing erosion, sedimentation or an environmental nuisance (as defined in the Environmental Protection Act, section 15); or

2. the enforcement authority reasonably believes it is not appropriate in the circumstances to give the show cause notice (because the notice is likely to adversely affect the effectiveness of the enforcement notice, for example).

3. (c)
   By s. 168 for enforcement notices as follows:

68  Enforcement notices

1. (1)
   If an enforcement authority reasonably believes a person has committed, or is committing, a development offence, the authority may give an enforcement notice to—

   1. the person; and
   2. if the offence involves premises and the person is not the owner of the premises—the owner of the premises.

2. (2)
   An enforcement notice is a notice that requires a person to do either or both of the following—

   1. to refrain from committing a development offence;
   2. to remedy the effect of a development offence in a stated way.

Examples of what an enforcement notice may require—

The notice may require a person do any or all of the following on or before a stated time or within a stated period—

• to stop carrying out development
• to demolish or remove development
• to restore, as far as practicable, premises to the condition the premises were in immediately before development was started
• to do, or not to do, another act to ensure development complies with a development permit
• if the enforcement authority reasonably believes works are dangerous, to repair or rectify the works, to secure the works, or to fence the works off to protect people
• to stop a stated use of premises
• to apply for a development permit
• to give the enforcement authority a compliance program that shows how compliance with the enforcement notice will be achieved.
  3. (3)
     The notice must state—

     1. the nature of the alleged offence; and
     2. if the notice requires the person not to do an act—
        1. (i)
           the period for which the requirement applies; or By ss 172-173:
        2. (ii)
           that the requirement applies until further notice; and
     3. if the notice requires the person to do an act—

2. (ii)
   the details of the act; and
3. (iii)
   the period within which the act must be done; and

   4. that the person has an appeal right against the giving of the notice.

4. (4)
   The notice may require demolition or removal of all or part of works if the enforcement authority reasonably believes it is not possible or practical to take steps—

   1. to make the development accepted development; or
   2. to make the works comply with a development approval; or
   3. if the works are dangerous—to remove the danger.

5. (5)
   A person must not contravene an enforcement notice. Maximum penalty—4,500 penalty units.
6. (6)
   An enforcement notice that requires development on premises to stop being carried out may be given by fixing the notice to the premises in a way that a person entering the premises would normally see the notice.
7. (7)
   A person must not deal with an enforcement notice stated in subsection (6) in a way that is reasonably likely to prevent the recipient seeing the notice.

Maximum penalty—4,500 penalty units.

4. (d)
   By ss 172-173:

172  Application in response to show cause or enforcement notice

If a person applies for a development permit in response to a show cause notice, or as required by an enforcement notice, the person—

1. (a)
   must not withdraw the application, unless the person has a reasonable excuse; and
2. (b)
   must take all necessary and reasonable steps to enable the application to be decided as soon as practicable, unless the person has a reasonable excuse; and
3. (c)
   if the person appeals the decision on the application—must take all necessary and reasonable steps to enable the appeal to be decided as soon as practicable, unless the person has a reasonable excuse.

Maximum penalty—4,500 penalty units

173  Enforcement authority may remedy contravention

1. (1)
   This section applies if an enforcement notice is contravened and the enforcement authority is not a local government. Note— If the enforcement authority is a local government, see the Local Government Act, section 142 or the City of Brisbane Act, section 132.
2. (2)
   The enforcement authority may—

1. (a)
   do anything reasonably necessary to ensure the notice is complied with; and
2. (b)
   recover any reasonable costs and expenses incurred in doing so as a debt owing by the recipient to the authority.

190. [86]
     Chapter 5 Part 4, Proceedings for offences in Magistrates Court, relevantly provides:

174  Proceedings for offences

1. (1)
   A person may bring proceedings (offence proceedings) in a Magistrates Court on a complaint to prosecute another person for an offence against parts 2 to 5 or section 226.
2. (2)
   The person may bring the offence proceedings 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, only the enforcement authority may bring offence proceedings for an offence under—

   1. if the offence is about the building assessment provisions—sections 163 or 164; or
   2. otherwise—sections 168, 172 or 226.

…

176  Enforcement orders

1. (1)
   After hearing offence proceedings, a Magistrates Court may make an order (an enforcement order) for the defendant to take stated action within a stated period.

Examples of action that an order may require—

to stop carrying out development

to demolish or remove development

to restore, as far as practicable, premises to the condition the premises were in immediately before development was started

to do, or not to do, another act to ensure development complies with a development permit

if the court reasonably believes works are dangerous, to repair or rectify the works, to secure the works, or to fence the works off to protect people

to stop a stated use of premises

to apply for a development permit

2. (2)
   The enforcement order may be in terms the court considers appropriate to secure compliance with this Act.

Example—

The order may require the defendant to provide security for the reasonable cost of taking the stated action.

3. (3)
   An enforcement order must state the period within which the defendant must comply with the order.
4. (4)
   An enforcement order may be made under this section in addition to the imposition of a penalty or any other order under this Act.
5. (5)
   A person must not contravene an enforcement order. Maximum penalty—4,500 penalty units or 2 years imprisonment.
6. (6)
   Unless a court orders otherwise, an enforcement order, other than an order to apply for a development permit—

   1. attaches to the premises; and
   2. binds the owner, the owner’s successors in title and any occupier of the premises.
7. (7)
   If the enforcement order does attach to the premises, the defendant must ask the registrar of titles, by notice given within 10 business days after the order is made, to record the making of the order on the register for the premises. Maximum penalty—200 penalty units.

191. [87]
     Chapter 5 Part 5, Enforcement orders in P&E Court, relevantly provides:

180  Enforcement orders

1. (1)
   Any person may start proceedings in the P&E Court for an enforcement order.
2. (2)
   An enforcement order is an order that requires a person to do either or both of the following—

   1. refrain from committing a development offence;
   2. remedy the effect of a development offence in a stated way.

Example—

An enforcement order may require a person to pay compensation to someone who, because of the offence, has—

1. (a)
   suffered loss of income; or
2. (b)
   suffered a reduction in the value of, or damage to, property; or
3. (c)
   incurred expenses to replace or repair property or prevent or minimise, or attempt to prevent or minimise, the loss, reduction or damage.

3. (3)
   The P&E Court may make an enforcement order if the court considers the development offence—

1. (a)
   has been committed; or
2. (b)
   will be committed unless the order is made.

4. (4)
   The P&E Court may make an enforcement order (an interim enforcement order) pending a decision in proceedings for the enforcement order.
5. (5)
   An enforcement order or interim enforcement order may direct the respondent—

1. (a)
   to stop an activity that constitutes a development offence; or
2. (b)
   not to start an activity that constitutes a development offence; or
3. (c)
   to do anything required to stop committing a development offence; or
4. (d)
   to return anything to a condition as close as practicable to the condition the thing was in immediately before a development offence was committed; or
5. (e)
   to do anything to comply with this Act.

Examples of what the respondent may be directed to do—

• to repair, demolish or remove a building
• to rehabilitate or restore vegetation cleared from land

6. (6)
   An enforcement order or interim enforcement order may be in terms the P&E Court considers appropriate to secure compliance with this Act. Example— An enforcement order may require the respondent to provide security for the reasonable cost of taking the stated action.
7. (7)
   An enforcement order or interim enforcement order must state the period within which the respondent must comply with the order.
8. (8)
   A person must not contravene an enforcement order or interim enforcement order. Maximum penalty—4,500 penalty units or 2 years imprisonment.

192. [88]
     I next turn to the specific provisions referred to in s. 163(2).
193. [89]
     Section 163(2)(a) applies to development carried out under s. 29(10)(a) Planning Act.  In short, this contemplates the circumstance where a person carries out assessable development which is lawful under a superseded planning scheme but not under a current scheme and makes a request to the local authority to carry out development under that scheme.  
194. [90]
     Section 29 appears in Chapter 2, ‘Planning’, ‘Part 4 Superseded planning schemes’, Division 1 ‘Applying superseded planning scheme’.  The section provides:

29  Request to apply superseded planning scheme

1. (1)
   This section applies if a person wants a superseded planning scheme to apply to a proposed development application or proposed development.
2. (2)
   A superseded planning scheme is a planning scheme, together with related planning scheme policies, that was in effect immediately before any of the following events (a planning change) happens—

   1. the planning scheme was amended or replaced;
   2. any of the planning scheme policies were amended, replaced or repealed;
   3. a new planning scheme policy was made for the planning scheme.

Note—

For a planning instrument change under the Economic Development Act 2012, see also sections 40L(3), 41(4) and 42K(2) of that Act.

3. (3)
   A person may, within 1 year after the planning scheme and related policies become a superseded planning scheme, make a superseded planning scheme request in relation to the superseded planning scheme.
4. (4)
   A superseded planning scheme request is a written request to a local government—

1. (a)
   to accept, assess and decide a development application (a superseded planning scheme application) under a superseded planning scheme; or
2. (b)
   to apply a superseded planning scheme to the carrying out of development that was accepted development under the superseded planning scheme.

5. (5)
   A regulation may prescribe the following in relation to a superseded planning scheme request—

1. (a)
   that the request must be made in an approved form;
2. (b)
   the information that must be given with the request;
3. (c)
   how the local government may set a fee for considering the request;
4. (d)
   the period for deciding the request, and how the period may be extended;
5. (e)
   when and how a local government must notify the person making the request of the local government’s decision;
6. (f)
   another matter related to deciding the request.

6. (6)
   The local government must decide whether or not to agree to a superseded planning scheme request within the period prescribed by, or extended as required under, the regulation.
7. (7)
   The local government must, within 5 business days after making the decision, give a decision notice to the person who made the superseded planning scheme request.
8. (8)
   If, within 5 business days after the end of the period or of the period extended under subsection (6), the local government does not give a decision notice to the person, the local government is taken to have agreed to the superseded planning scheme request.
9. (9)
   If the local government decides to agree, or is taken to have agreed, to a request under subsection (4)(a)—

1. (a)
   the superseded planning scheme application must be made within 6 months after the local government—

   1. gives a decision notice to the person who made the request; or
   2. is taken to have agreed to the request; and
2. (b)
   despite section 45(6) to (8), the assessment manager for the superseded planning scheme application must assess the application as if the superseded planning scheme to which the application relates was in effect instead of—

   1. the planning scheme; and
   2. a planning scheme policy for the local government area.

10. (10)
    If the local government decides to agree, or is taken to have agreed, to a request under subsection (4)(b)—

1. (a)
   the development may be carried out under the superseded planning scheme; and the following apply to the decision as if the decision were a development approval, given by the local government as the assessment manager, that took effect on the day when the decision notice was given or the local government is taken to have agreed to the request

   1. chapter 3, part 5, division 4;
   2. schedule 1, table 1, item 3.

195. [91]
     Section 163(2)(b) applies to development carried out in accordance with an exemption certificate under s. 46 Planning Act.  In short, this contemplates the circumstance where development is considered not necessary for assessment for one of the reasons given in s. 46(3). Section 46 appears in Chapter 3 ‘Development assessment’ and provides:

46  Exemption certificate for some assessable development

1. (1)
   A development approval is not required for assessable development on premises if there is an exemption certificate for the development.
2. (2)
   The following persons may give an exemption certificate—

   1. for development for which a local government would be the prescribed assessment manager if the development, and no other development, were the subject of a development application—the local government;
   2. otherwise—the chief executive.
3. (3)
   The person may give an exemption certificate if—

1. (a)
   for development for which there is a referral agency—each referral agency has agreed in writing to the exemption certificate being given; and
2. (b)
   any of the following apply—

   1. the effects of the development would be minor or inconsequential, considering the circumstances under which the development was categorised as assessable development;
   2. the development was categorised as assessable development only because of particular circumstances that no longer apply;
   3. the development was categorised as assessable development because of an error.

4. (4)
   The person must give a copy of the exemption certificate to—

1. (a)
   each owner of the premises; and
2. (b)
   each referral agency for the development; and
3. (c)
   if the person is the chief executive—the local government for the premises.

5. (5)
   The person must publish a notice about the person’s decision to give the exemption certificate on the person’s website.
6. (6)
   The notice must state—

1. (a)
   a description of the premises for which the exemption certificate was given; and
2. (b)
   a description of the development to which the exemption certificate relates; and
3. (c)
   the reasons for giving the exemption certificate; and
4. (d)
   any matter prescribed by regulation.

7. (7)
   The exemption certificate attaches to the premises and benefits each of the owners, the owners’ successors in title and any occupiers of the premises.
8. (8)
   The exemption certificate has effect for 2 years after the day the certificate was given, or a later day stated in the certificate.
9. (9)
   However, the exemption certificate may state a period, or periods, within which—

1. (a)
   stated development must be completed; or
2. (b)
   a use that is the natural and ordinary consequence of the development must start; or
3. (c)
   a plan for reconfiguring a lot that is required under a regulation to be given to the local government for its approval must be given.

10. (10)
    To the extent development does not comply with a requirement stated under subsection (9), the exemption certificate has no effect.
11. (11)
    Subject to a requirement stated under subsection (9)—

1. (a)
   any development substantially started under the exemption certificate may be completed as if the certificate had not expired; and
2. (b)
   a use that is the natural and ordinary consequence of the development is taken to be a lawful use; and
3. (c)
   a development approval is not required for reconfiguring a lot that is the subject of the exemption certificate if works for the reconfiguration substantially started before the certificate expires.

196. [92]
     Section 163(2)(c) applies to development carried out under s. 88(3) Planning Act.  In short, this contemplates the circumstance where security was paid for completion of approved development within a given time period.  It can permit the completion of that development using that security despite the lapse of the development approval.  The section provides:

88  Lapsing of approval for failing to complete development

1. (1)
   A development approval, other than a variation approval, for development lapses to the extent the development is not completed within any period or periods required under a development condition.
2. (2)
   A variation approval for development lapses to the extent the development is not completed within—

   1. if a development condition required the development to be completed within a stated period or periods—the stated period or periods; or
   2. if paragraph (a) does not apply—the period or periods the applicant nominated in the development application; or
   3. otherwise—5 years after the approval starts to have effect.
3. (3)
   However, despite the lapsing of the development approval, any security paid under a condition stated in section 65(2)(e) may be used as stated in the approval or agreement under section 67 (to finish the development, for example).

The construction of s. 163

The appellant’s contentions

197. [93]
     The appellant relied primarily on the judgment of Williamson KC DCJ in Serratore v Noosa Shire Council [2021] QPEC 21.  In that case, one of the issues which arose was whether an enforcement notice under s. 168 Planning Act had complied with the requirements under s. 168(3)(a) of that Act to identify the nature of the alleged offence in circumstances where the enforcement notice did not refer to any of the matters in s. 163(2) (much less assert that they did not apply to the development referred to in the notice).  His Honour concluded (for reasons explained below) the enforcement notice had not complied with s. 163(3)(a) because the matters in s. 163(2) were each an element of the offence created in s. 163(1).   By failing to refer to, and assert, the exclusion of those matters in the notice, his Honour considered that the notice had not identified the nature of the offence as required by s. 163(3)(a). The appellant submits I should follow that judgment, albeit that it arose in the context of assessment of the validity of an enforcement notice rather than in the context of a prosecution for an offence. 

The respondent’s contentions

198. [94]
     The respondent relied on McDonald v Holeszko [2018] QDC 204 and Baker v Smith [2021] QCA 66.   She submitted that those two cases were authority for the proposition that the elements of the offence under the predecessor provision to s. 163 Planning Act, being s. 578 SPA, were contained in s. 578(1) SPA and did not include the matters in 578(2) SPA.  She submitted that s. 578 was sufficiently similar in form to s. 163 Planning Act to make authorities on the identification of the elements of s. 578 applicable to the construction of s. 163 Planning Act.   She submitted that those cases should be followed in the interpretation of s. 163 Planning Act.
199. [95]
     The respondent submitted that Serratore could be distinguished because Serratore was a decision in respect of an appeal against the issue of an enforcement notice under s. 168 of the Planning Act, not a decision on the elements of the offence under s. 163 in the context of a prosecution. 
200. [96]
     The respondent also relied on his Honour’s observation that even if the matters in s. 163(2) were not elements of the offence, the enforcement notice remained defective for failure to provide necessary particulars to articulate the “nature of the offence” under s. 168(3)(a).^[16]  The contention seemed to be that his Honour’s conclusion on the elements of the offence was obiter.  I disagree with that submission.  His Honour gave two reasons why the notice was defective.  That does not make either of those reasons obiter. Further, to the extent it matters, his Honour’s analysis of the elements was his principal reason for his conclusion.

Serratore v Noosa Shire Council

201. [97]
     In Serratore, landowners had cleared land to reduce bush fire risk.   The work involved significant areas of clearing to create fire breaks and bush fire access tracks.   About a year after the clearing had occurred, Council issued an enforcement notice under s. 168 of the Act.  Relevant to this appeal is Section 3 of the notice.  His Honour observed in that regard, relevant to this appeal:

[16]  Section 3 of each enforcement notice identifies the reasons for giving the notice. The reasons are in the following terms:

Council reasonable [sic] believes that an Enforcement Notice should be given to you because you have committed or are committing an offence pursuant to Section 168 of the Planning Act 2016 and in breach of the Noosa Plan. Satellite imagery…[over the land]… shows that extensive clearing of vegetation has taken place. Under the Noosa Plan, this clearing constitutes assessable development and is unlawful unless a Development Permit for Operational Works (clearing vegetation) has been obtained. Under the Noosa Plan, the areas which have been cleared of vegetation are identified by the Noosa Plan’s Biodiversity Overlay as being a Riparian Buffer Area, Environmental Protection Area and/or Environmental Enhancement Area. Clearing vegetation within the Riparian Buffer Area, Environmental Protection Area and/or the Environmental Enhancement Area requires a Development Permit for Operational Works. Council’s records show that a Development Permit has not been obtained for clearing vegetation. It is an offence under Section 163 of the Planning Act 2016 to carry out assessable development unless there is an effective Development Permit for such development. Therefore, the vegetation clearing has been undertaken in breach of the Noosa Plan and the Planning Act 2016.

[17]  Two observations can be made about the ‘reasons’.

…

[19] Second, the development offence alleged to have been committed, or being committed, in each notice is a contravention of s 163 of the PA. Four facts were identified in the reasons to establish a belief this offence had been, or was being, committed namely: (1) unidentified satellite imagery for the land shows that extensive clearing of vegetation had taken place; (2) under the planning scheme, ‘this clearing’ constitutes assessable development and requires a development permit for operational works (clearing vegetation); (3) the areas cleared are identified by Noosa Plan’s Biodiversity Overlay as being, inter alia, Environmental Protection and/or Environmental Enhancement Area where clearing vegetation requires a development permit for operational works; and (4) Council’s records show that no development permit for operational works (vegetation clearing) had been obtained for the land. [20] Items (1) and (4) above are uncontroversial. The dispute between the parties focuses, in part, upon items (2) and (3).

202. [98]
     The appellants sought to have the enforcement notice set aside on four grounds.  Relevant to this case was the contention that the notice was defective because it did not comply with, relevantly, s. 168(3)(a) (set out in paragraph [85](c) above) which requires a notice to “state the nature of the alleged offence”.
203. [99]
     His Honour began dealing with this issue by accepting that to comply with s. 168(3)(a) of the Act, the notice had to identify the facts said to give rise to the offence.  His Honour observed:

[30] Dealing with the first alleged defect, s 168(3)(a) of the PA mandates that an enforcement notice must state ‘the nature of the alleged offence’. As to the level of particularity to which a notice must descend, her Honour Judge Kefford comprehensively discussed this at paragraphs [90] to [95] of Benfer v Sunshine Coast Regional Council [2019] QPELR 613.

[31]  I agree with her Honour’s reasoning. It is authority for the proposition that the development offence believed to be committed should be identified with precision in an enforcement notice. This, as her Honour says, requires the factual ingredients (elements) that constitute the offence to be identified. Here, the enforcement notices do not, in my view, identify with the required precision the nature of the alleged offence. Nor do they identify all of the essential factual ingredients necessary to establish the alleged offence. This is so for the following reasons.

[underlining added]

204. [100]
     His Honour then set out s. 163 of the Act and continued:

[33] The reasons given in the enforcement notices describe the offence committed against s 163 of the PA in this way:

“It is an offence under Section 163 of the Planning Act 2016 to carry out assessable development unless there is an effective Development Permit for such clearing.”

[34]  With this description in mind, it is tolerably clear the author of the enforcement notices proceeded on the footing that s 163(1) of the PA is a complete statement of the factual situation which must exist before criminal liability is incurred. This is confirmed by the facts relied upon in each notice to establish the offence in the terms stated. To proceed on this footing, in my view, caused the drafter of each notice to fall into error.

[35]  Section 163 of the PA comprises two subsections. Given its form, an issue arises as to whether subsection (2) is, like subsection (1), an element of the offence created, or, an exception that must be negatived when raised as an excuse or justification (i.e. a defence). Whether subsection (2) is an element of the offence, or a defence, is to be determined by reference to the PA, and the intention ascribed to the legislature.

[36]  Is subsection (2) an element of the offence created by s 163 of the PA?

[37]  This question is answered in the affirmative.

[38] The offence created by s 163 is not stated completely in subsection (1). Both subsection (1) and (2), taken in combination, provide the complete statement of the factual situation which must be found to exist before criminal liability is incurred under s 163. This conclusion is supported by a combination of considerations.

[underlining added]

Legal elements v factual ingredients 

101. [101]
     The elements of an offence are the matters which are required to be established as a matter of law to make out the offence.  While the elements are sometimes matters of fact, they are not necessarily such.  The essential factual ingredients of an offence, on the other hand, are generally taken to refer to the allegations of fact which describe the manner in which the offence was committed.  It has been suggested in some authorities that legal elements are static and factual ingredients may vary with each case.  The distinction is explained in the context of an environmental offence in McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (No. 2) (2002) 54 NSWLR 39.^[17]  In that case the Court was considering the validity of a summons in the following form, relevantly:

On or about [date] at [place] [the appellant] committed an offence against the Environmental Offences and Penalties Act 1989 in that it did pollute water contrary to s. 16(1) of the Clean Waters Act 1970.

102. [102]
     The appellant contended that the summons failed to articulate an offence because it failed to articulate in the charge the act of polluting by the appellant.  It was not in dispute that the summons omitted to do so.  It was relevant whether the omission went to the identification of the legal nature of the offence or just to the essential factual ingredients because, in the circumstances of that case, an omission going to the legal nature of the offence could not be saved by the relevant saving provisions.   The Court of Criminal Appeal concluded that the omission was not one which went to the articulation of the legal nature of the offence.  It held:

[11]  The charge in the summons alleged that the appellant “did pollute waters contrary to s 16(1)”. Particulars of the place and kind of pollution alleged were provided in the summons. Accordingly, the question in this appeal is whether the omission of an allegation detailing the act of polluting said to have caused the pollution renders the charge fatally defective so as to preclude the curative effect of s 43.

[12]  The answer to that question depends, in turn, on whether the act of polluting is a legal element of the offence or merely an essential factual ingredient thereof. That is because a charge that omits a legal element of the offence is incurable, whereas, by reason of s 43, a charge that lacks an essential factual ingredient of the offence may still be maintained.

[13]  The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed. But putting the difference in this way does not necessarily help in the differentiation process.

[14]  I think it helpful to note that the purpose of the rule that requires the legal elements of the law to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge: Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. If the charge does not allege an offence known to the law, the court has no jurisdiction and the charge must be struck out.

[15]  The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet: Stanton v Abernathy (1990) 19 NSWLR 656. Thus, the legal elements of the one charge may be proved in more than one way - by differing sets of essential factual ingredients.

[16]  This case concerns a statutory offence. The elements of a statutory offence must be discerned from the relevant statutory provisions. In the present instance, these are ss 16(1) and (7a) of the Clean Waters Act. Section 16(1) provides:

"A person shall not pollute any waters”.

Section 16(7) provides that any person who contravenes the provisions of s 16 is guilty of an offence under the Environmental Offences and Penalties Act 1989.

[17]  Significantly, the term “pollute", in relation to waters, is defined by the Clean Waters Act (s 5). The definition contains three paragraphs, each of which provides for a different meaning of pollute. Paragraph (a) provides, generally, that pollute means to introduce into waters any matter so that “the physical, chemical or biological condition of the waters is changed”. Paragraph (b) contains a complex definition that broadens the meaning of pollute so that it means (in summary form) to introduce into waters matter which alone or together with other matter makes or is likely to make the waters unclean, etc, detrimental to health of persons, undrinkable to farm animals or is likely to interfere with the enjoyment of rights. Paragraph (c) provides that pollute means to introduce into waters any matter that is of a prescribed nature, description or class that does not comply with a prescribed standard. The latter, in effect, is a deemed polluting.

[18]  It follows that there are several ways in which a person may pollute waters, namely, the ways defined in the statutory definition of “pollute”. That being so, it seems to me, by the language of the statute, the relevant legal element of the offence is the act of “polluting”, as defined, of waters. The particular way in which the defendant is alleged to have polluted the waters concerned will constitute the essential factual ingredients of the charge.

[19]  In Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 Gleeson CJ said at 83 that an offence of contravening s 16(1) requires the prosecution to prove that the defendant performed some act which resulted in waters being polluted (see also Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 82). This, I think, is on the basis that the prosecution relies on “pollute” as defined in either one of paras (a) or (b). The need to prove these matters stems from the statutory definition of “pollute“. The existence of the need, however, does not convert these matters into legal elements of the offence. In my view, they are and remain essential factual ingredients of the legal element of “pollute” in the offence of contravening s 16(1).

[20]  Accordingly, in my view, the elements of the offence are:

1. (a)
   a polluting;

2. (b)
   by a person;

3. (c)
   of any waters.

[21]  The charge alleges these three elements. Therefore, the language of the charge, on its face, describes an offence known to the law, namely, a contravention of s 16(1). The court is thereby vested with jurisdiction to hear the prosecution of that offence.

[Underlining added]

103. [103]
     The distinction is also drawn by the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [26] where the majority (Heydon J agreeing in this part of the majority reasons) held (footnotes omitted):

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.  In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed.  In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offence, “must at the least condescend to identifying the essential factual ingredients of the actual offence”.  These facts need not be as extensive as those which a defendant might obtain on an application for particulars.  In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant's acts or omissions”.  McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”. 

[Underlining added]

104. [104]
     As I read Judge Williamson’s reasons, his view in Serratore was that in stating the nature of an alleged offence, a notice must state both the legal elements and the essential factual ingredients of an offence to inform the defendant:

     1. That the offence identified in the notice is an offence known to the law; and
     2. The time, place and manner in which the offence was committed sufficient to inform the recipient of the substance of the offence said to sustain the notice.  
105. [105]
     Further, in my view, the passages from his Honour’s reasons set out in [99] and [100] confirm that the analysis he was about to undertake was one which went to the legal elements of the offence: that is whether the matters in s. 163(2) are a necessary part of any valid statement of the offence created by s. 163.    Once that is realised, it seems to me that his Honour’s analysis is directly applicable to the issue raised in this appeal, despite it arising in the context of a challenge to an enforcement notice rather than in a prosecution.

Reasons for his Honour’s construction  

106. [106]
     His Honour gave three reasons for construing s. 163 Planning Act as creating an offence which included as elements the exclusion of each of the three matters in 163(2). 
107. [107]
     His Honour’s first reason can be summarised in this way.  Part 2 creates development offences subject to “exemptions” and specifically identified statutory provisions.  Section 163(2) is not expressly designated an exemption in circumstances where the Part does expressly identify the matters in s. 166 as exemptions by the heading to the section.  The inference is that where Parliament intended to create exemptions it has said so.  In not doing so in relation to 168(2), it impliedly communicated that those matters were part of the development offence created by s. 163.  He explained this point as follows (footnotes included):

39. [39]
    First, there is statutory context suggesting grounds of excuse or justification (i.e. defences) are identified in the PA as ‘exemptions’. In this regard, s 161 of the PA states: “What part is about This part creates offences (each a development offence), subject to any exemptions under this part or to chapter 7, part 1 or section 275L.”

[40]  Development offences are created in Chapter 5, part 1 of the PA. Section 163(2) is contained within this part, but is not described as an exemption. Only one provision in this part of the PA is expressly described as an exemption, namely s 166. The heading to the provision is ‘Exemptions if emergency causing safety concern’. Section 163(2) is not recognised as, or deemed, an exemption in s 166.

[41] Section 161 provides that exemptions are also to be found in s 275L, and Chapter 7 part 1. The latter includes ss 260 and 261. Again, the exemptions provided by these sections are separate to the provisions creating development offences. For completeness, it can be observed that s 163(2) is not recognised as, or deemed, an exemption in these particular provisions of the PA.

[42]  Given the above, for s 163(2) to operate as an exemption, this would need to be implied from, inter alia, the words ‘However, subsection (1) does not apply to development carried out’. Whilst I accept this can be implied from these words, it is not the only implication open. It can also be implied that the provision is intended to operate as an element of the offence created. In my view, it is the second implication that is the preferred construction given two points of context, namely: (1) s 161 confirms the Act is structured with offences, which are subject to exemptions; and (2) the provisions creating the development offences appear to be separate to provisions providing exemptions. The second point is made good by comparing ss 162 to 165 with ss 166(2), (3) and (4) and ss 260, 261 and 275L.

[43]  That the matters identified in s 163(2) are not contained within a separate provision providing an exemption, such as ss 166, 260, 261 and 275L, is in my view, a strong indicator it is not intended to operate as an excuse or justification for s 163(1).

108. [108]
     His Honour’s second reason is that development covered by s. 163(2) is lawful development pursuant to the provisions under which it is undertaken, as opposed to being unlawful development which is excused in specific cases.  His Honour compared s 163(2) with s 166(4) to show explain the distinction.  Referring to s. 164, his Honour said:

[47]  The above provision excuses the commission of a development offence where it is a necessary activity (assessable development), which has been carried out in an emergency and a prescribed notice has been given. But for that emergency, and the giving of the prescribed notice in a specified time, the development carried out would, prima facie, be unlawful. This, in my view, is a clear example of a provision of the PA that is intended to operate as an excuse or justification. The circumstances in which the excuse or justification arises will be known to the person who seeks to raise it. Not all of those circumstances will be within the enforcement authority’s actual, or assumed, knowledge.

[48]  Section 163(2) does not work in the same way. It is drafted to make clear that s 163(1) ‘does not apply’ in one of three circumstances. In each of the circumstances, they have an important feature in common, which does not exist in the case of s 166(4). The three stated circumstances contemplate the development the subject of consideration is, or has been, lawfully authorised at the time it was carried out. When appreciated in this light, it can be seen that the purpose of s 163(2) is to make clear that criminal liability cannot arise at all if one, or more, of the three prescribed circumstances exist.

109. [109]
     His Honour’s third reason is based on his Honour’s view that the three circumstances cited in s 163(2) should ordinarily be within the knowledge of an enforcement authority, or at least in the authority’s records.   His Honour explains:

[50]  In each of the three cases prescribed in s 163(2), the PA recognises there is an authority to carry out the development the subject of consideration, which can be sourced to a specific provision in the Act. That authority may not necessarily be founded upon a development permit. In the case of subsection (2)(a), the authority is sourced back to a superseded planning scheme request. In the case of subsection (2)(b), the authority is sourced to an exemption certificate. In the case of subsection (2)(c), the authority is sourced to a lapsed development approval that contains a condition, or is subject to an agreement, requiring particular works to be completed.

[51]  The matters raised by s 163(2) do not call for new or additional facts solely within the knowledge of the appellants to be examined. Rather, proof in relation to all three limbs is within a Council’s control. The provisions all relate to decisions that could be made, or deemed to be made, by it. This can be demonstrated by reference to the provisions of the PA referred to in s 163(2).

110. [110]
     His Honour goes on to explain that:

1. For 163(2)(a), his Honour points out that the circumstance covered by s. 29(1)(a) depends on a request from a person and an approval of that request by a Council, or a deemed approval;   
2. For 163(2)(b), his Honour points out that under s. 46, the relevant exemption certificate will either be given by the local authority or notice of it will be given to the local authority; and
3. For 163(2)(c), his Honour points out that Council will be able to prove from its records whether a development approval has been issued, lapsed and a decision made to carry out development in the manner anticipated by s 88(3) of the Act.

111. [111]
     His Honour contrasts that with the circumstances covered by the exception in s. 161 relating to Chapter 7 Part 1, where those circumstances might not be known to the local authority.  His Honour concludes on this issue:

[61] That the facts and circumstances prescribed by s 163(2) of the PA should be within the Council’s actual, or assumed, knowledge is relevant context for determining whether the provision is an element of the offence. It points in favour of a conclusion that the provision is an element of the offence. As context, it also engages a presumption, which can be stated as - the burden of proof is placed on a party to prove matters particularly within that party’s knowledge.³⁷ I accept the presumption has been criticised and may not be determinative in any given case. Nonetheless, in conjunction with all of the matters considered in paragraph [36] to [58] it is relevant context which persuades me s 163(2) is an element of the offence created rather than an excuse or justification

112. [112]
     Footnote 37 refers to Phillips v Spencer [2006] 2 Qd R 47 at [34], a case I will deal with below.

His Honour’s conclusion

113. [113]
     His Honour concluded as follows:

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

1. (a)
   Has a person carried out ‘development’?
2. (b)
   Is the ‘development’ carried out ‘assessable development’?
3. (c)
   Is the ‘assessable development’ carried out authorised by all necessary development permits?
4. (d)
   If the assessable development is authorised by a development permit/s, had the permit/s taken effect at the time the development was carried out?
5. (e)
   Was the assessable development carried out under an exemption certificate under s 46 of the PA?
6. (f)
   Was the assessable development carried out under s 29(10)(a)?
7. (g)
   Was the assessable development carried out under s 88(3) of the PA?

[63]  The enforcement notices do not answer the questions posed in subparagraphs (e) to (g) above. The failure to do so is a defect in each enforcement notice. It means, in my view, the enforcement notices do not allege a development offence known to law, which is contrary to s 168(3)(a) of the PA.

114. [114]
     His Honour went on to state these further propositions, relied upon by the respondent:

[64] If a different view is taken, namely that s 163(1) of the PA is to be treated as a complete statement of what must exist before criminal liability is incurred, my view as to the sufficiency of the enforcement notices for the purpose of s 168(3)(a) of the PA remains unchanged. The reasons stated in the enforcement notices are not sufficiently precise to identify the alleged offence. The notices do not identify: (1) when the offence occurred; (2) the facts relied upon to allege the offence was still being committed; and (3) why the clearing work constituted operational work as defined in the PA. The enforcement notices are silent about item (3), which is an essential factual ingredient required to establish the clearing works constituted assessable development.

115. [115]
     These observations reflect his Honour’s view in my opinion that the notice failed to identify essential factual elements as well as essential legal elements of the alleged offence.  I have already explained why I do not consider this alternative observation does not affect the conclusion that his Honour’s conclusion on the elements of the offence was part of the ratio of his Honour’s decision at [96] above.

Serratore as a relevant authority

116. [116]
     Is Serratore a relevant authority in the context of a prosecution?  The respondent contends it is not, for the reasons set out in paragraph [95] above.  I disagree.  True it is that the nature of the proceeding in Serratore was different from the nature of the proceeding in this case.  However, of itself, that does not mean that Serratore is not a relevant authority.  The question posed by his Honour in analysing the requirements of s. 168(3)(a) is the same question as that which arises on ground two: i.e. is subsection (2) an element of the offence created by s 163?  His Honour’s reasoning and conclusions are therefore directly relevant to the issue which arises here.   Further, s. 168 and s. 163 are both parts of a single statutory scheme which has the purpose of ensuring compliance with planning laws.  In that context, his Honour’s views as to the elements of s. 163 for the purpose of the enforcement notice process are directly relevant as to the elements of that same section for prosecution purposes.

Judicial comity as a factor in the analysis

117. [117]
     If I disagree with his Honour’s view as to the elements of the offence, is there an argument that I should follow his Honour’s judgment for reasons of comity? Mr O'Brien KC provided some helpful reflections of Lindgren J on this question.  In Undershaft (No. 1) Ltd v Commissioner of Taxation 253 ALR 280, at 294, his Honour observed:

Judicial comity

[68] The notion of judicial comity raises interesting questions.  I am not bound to follow Edmonds J in Virgin Holdings, it being a decision of co-ordinate authority.  However, the answers to the following questions are not so obvious.  In what circumstances, if at all, am I bound to accord influence to his Honour’s decision?  Am I bound independently to reach my own conclusion?    If so, and my conclusion does not accord with that of his Honour, by reference to what principles, if at all, am I at liberty to discard my own conclusion in favour of his Honour’s?

[69] Before referring to the authorities, I will state my understanding of the role of considerations of judicial comity by reference to the task confronting me.

[70] First, I must embark on my own independent consideration of the issues for decision with a view to reaching my own independent conclusion on them.  The oath of judicial office requires me to do no less.  If my own conclusion, independently reached, is consistent with his Honour’s, there is no scope for his decision to influence me beyond “fortifying” me in my conclusion.

[71] Second, I must not follow his Honour should I reach the view that his Honour was “clearly” or “plainly” wrong.

[72] Third, I may (not must) follow his Honour’s (supposedly inconsistent) decision once it is clear that that decision is not “plainly” or “clearly” wrong.

[73] Fourth, accepting the strong desirability of certainty and stability in judicial decision-making in the administration of justice, I will in fact follow his Honour’s inconsistent decision unless I conclude that it was clearly or plainly wrong, or that for some other reason those same interests of justice demand that I adhere to my own conclusion in preference to his Honour’s supposedly erroneous one.

118. [118]
     His Honour then set out authorities which in my respectful view support his propositions of principle.  Justice Lindgren’s formulation has been frequently cited and applied since in the Federal Courts and other State Courts.^[18]  I could not find reference to it in a case in the Queensland Court of Appeal.  However, in the Supreme Court, Justice Bond observed in BRB Modular Pty Ltd v AWX Constructions Pty Ltd [2015] QSC 222^[19]:

A question arises as to whether I am obliged to apply his Honour’s approach to the policy of the Act in a case such as this where it is conceded there is a prima facie case that the adjudication determination is void for jurisdictional error. I think the approach that I should take to that question is that identified by Holland J in Michael Realty Pty Ltd v Carr (1975) 2 NSWLR 812 at 820, where his Honour observed:

I do not think that I am relieved by the decision of Needham J of my duty to bring my own judgment to bear on the point in question. There is no rule of law which binds a Judge to abide by the decision of another Judge of coordinate jurisdiction; but a Judge of first instance will, as a matter of judicial comity, usually follow the decision of another Judge of first instance in the same jurisdiction, unless convinced that the judgment was wrong.

119. [119]
     Similarly, in Abbott v Commissioner of Police [2017] 1 Qd R 592 at [27], Jackson J observed:

[27]  Alternatively, I should take the same approach to the single Judge decisions of the various States. As Rogers J said in Hamilton Island Enterprises Pty Ltd v Commissioner of Taxation:

In my view it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising federal jurisdiction should strive for uniformity in the interpretation of Commonwealth legislation. Unless I were of the view that the decision of another judge of co-ordinate authority was clearly wrong I would follow his decision.

120. [120]
     While I have not located adoption in Queensland of Justice Lindgren’s formulation of the approach to application of the comity principle, I intend to adopt it.  The principle is consistent with the observations approved by Bond J and Jackson J.  It has considerable support in judgments in other Courts.   It gives clear and principled guidance on how to navigate the balance between the competing judicial policies of deciding individual cases according to law and of striving for certainty and consistency in the law. 
121. [121]
     I should not leave this topic without referring to the recent decision of the Court of Appeal in Lynch v Commissioner of Police [2022] QCA 166.  In that case, Beach AJA, with whom Bond JA and Morrison JA agreed, reviewed the authorities on the related subject of when an intermediate Court of Appeal should follow its own decisions.  While that question is a distinct one from that which arises in this case, the issues which arise overlap.
122. [122]
     Of particular relevance to this case is Beach AJA’s explanation of the approach which intermediate Courts of Appeal should take to construing the same or cognate statutes.  After reviewing the authorities, his Honour concluded:

[69]  It is apparent from these decisions that a party, such as the appellant, who contends that this Court should depart from an earlier decision as to the proper construction of legislation faces a high threshold requiring materially more than mere persuasion that the construction advanced by the party is the preferable one. Rather, the appellant must persuade the Court to have a strong conviction that the earlier decision is wrong. That has been expressed in various forms of words, including that the earlier decision is ‘opposed to the undoubted intention of Parliament as enacted’, has a ‘patent’ error of construction or is ‘plainly wrong’. I do not perceive these various formulations of the approach to differ in their material substance; they are all ways of expressing the same essential concept.

[70]  The reasons for this caution in departing from an earlier decision as to the interpretation of a statute are readily apparent. Experience shows that ambiguity in statutory language is commonplace. Thus, there will often be a choice to be made between competing constructions each of which is reasonably open on consideration of the text, context and purpose of the statute. If the mere preference of a later court for a different interpretation were sufficient to justify departure from the earlier decision, the law and its administration would be liable to undesirable and unjustified instability on the basis of what Mason J termed ‘mere personal choice’. Adopting and adapting what was said by Gleeson CJ (Samuels and Priestley JJA and Hope AJA agreeing) in Clutha Developments Pty Ltd v Barry, if preference for a different construction were a sufficient basis for departure from the construction adopted in Dimitropoulos, next year a differently constituted court might prefer the construction adopted in Dimitropoulos and revert to it.

[underlining added]

123. [123]
     In my respectful view, these observations are apposite where this Court is dealing with a previous decision of this Court (or, in this context, of the Planning and Environment Court) construing the same statutory provision. 

The elements the offence created by s. 163

Analysis of s. 163

124. [124]
     Adopting Lindgren J’s approach, I begin by first forming my own view as to the elements of the offence created by s. 163.  There are several factors which suggest that the elements of the offence are confined to s. 163(1).  Some arise from Phillips v Spencer [2006] 2 Qd R 47.  I analysed that case in detail in Baker relevantly as follows:

239. [239]
     It is convenient at this point to deal with Phillips v Spencer [2006] 2 Qd R 47.  That case dealt with conviction of the applicant on his own plea under a provision creating criminal liability for him as a director of Nino Pty Ltd.  The company in turn pleaded guilty to an offence under s. 88(1) Nature Conservation Act.  Section 88 relevantly provided:

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

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

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

3. (c)
   an exemption under a regulation.

Maximum penalty – 3,000 penalty units or 2 years imprisonment

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

3. (3)
   It is a defence to a charge of taking a protected animal in contravention of subsection (1) to prove that –

1. (a)
   the taking happened in the course of a lawful activity that was not directed towards the taking; and

2. (b)
   the taking could not have been reasonably avoided.

4. (4)
   Subsection (3) does not allow a person to use or keep the animal.

5. (5)
   In this section -

“authorised person” means a person as follows performing functions under this Act in relation to the protected animal –

1. (a)
   the chief executive;

2. (b)
   a conservation officer, public service officer or other employee of the department acting under the chief executive’s authority.

240. [240]
     The offences were indictable offences dealt with summarily.  The issue which relevantly arose was whether the charge had identified an offence known to the law in circumstances where the charge did not aver in terms of s. 88(2) that the taking of animals had not occurred in a protected area.  The applicant contended that in failing expressly to so aver, the company had pleaded guilty to an offence not known to the law because the matter in s. 88(2) was part of the statement of the offence. 

241. [241]
     De Jersey CJ, with whom McMurdo P agreed, held that the exclusion in s. 88(2) was not part of the statement of the offence.  His Honour held:

[16]  Taking in a protected area is dealt with by s. 62. The short question is whether the circumstance that the taking has not occurred in a protected area is part of the statement of the offence.

[17]  The form of s. 88(1) suggests it is not. The subsection is presented as a comprehensive statement of the elements of the offence, extending to specifying the maximum penalty. Section 47 of the Justices Act provides “the description of any offence in the words of the Act … shall be sufficient in law”.

[18]  Section 88(2) specifies a situation in which the offence set out by s. 88(1) could not occur. It is up to the complainant, or the prosecuting authority, to select the applicable provision – s. 88 or s. 62. If the charge is brought under s. 88, then once the place where the alleged offence occurred had been established, the court could as a matter of law be satisfied of the applicability of s. 88 by taking judicial notice of regulations establishing protected areas (cf. Nature Conservation Act, s. 14, s. 29). Determining elements of offences in cases like this is rarely crystal clear, as the myriad cases on exclusions and provisos illustrate, but it is the form of s. 88(1), an acknowledgment of the ease with which the legislature could have included the subject matter of (2) in (1) had it been intended that constitute an element of the offence in the formal sense, and the role of s. 88(2) as explained above, which persuade me that s. 88(2) was not intended to establish an element of the offence for which s. 88(1) otherwise provides.

[underlining added]

242. [242]
     His Honour reached this conclusion in the context where he identified that the scheme of the statute was to create two offences: one under s. 62 (where the taking occurred in a protected area) and the other under s. 88(1) (where the taking occurred outside a protected area).

243. [243]
     Jerrard JA reached the contrary conclusion.  It is worth noting that his Honour placed emphasis on the following:^[20]

1. (a)
   The distinction between ss. 88(2) and 88(3), the latter cast in the form of a defence, suggested that s. 88(2) was part of the offence;

2. (b)
   The consideration that the complainant will be an officer of the relevant State Department and will likely know which offence provision applies.

243. [243]
     The respondent contended that the analogy in the language of s. 578(2)(b) and s. 88(2) Nature Conservation Act and in the statutory context of the two provisions meant that it was appropriate to adopt the same approach as in Phillips v Spencer.  The appellant pointed out, correctly, that the reasoning in Phillips was not entirely applicable to s. 578 because the interaction between ss. 88 and 62 was not replicated in this case.

244. [244]
     However, there are aspects of de Jersey CJ’s reasoning which do apply to s. 578(1):

1. (a)
   Like s. 88(1), s. 578(1) is presented in my view as a “comprehensive statement of the elements of the offence, extending to specifying the maximum penalty”; and

2. (b)
   Like s. 88(2), the terms of s. 578(2)(b) could have easily been included in the statement of the offence if Parliament intended it to be an element of the offence.

125. [125]
     Phillips v Spenser was cited in Serratore as authority for the proposition that there is a presumption that the burden of proof is placed on the party in the best position to prove a matter.^[21]  While that proposition is correct (though the strength of the presumption is another matter, as Williamson DCJ noted), that matter was raised in favour of the conclusion that s. 88(2) Nature Conservation Act 1992 was an element of the offence in the dissenting judgment. 
126. [126]
     The three matters relied upon by de Jersey CJ arguably apply directly to s. 163 and favour the respondent’s argument that the elements of the offence created by s. 163 are found in s. 163(1) alone.
127. [127]
     First, s. 163(1) has the same form as the provision in Phillips. It presents as a self-contained statement of the offence followed by specification of the maximum penalty.  Frankly, in my view this is a compelling construction point.  It objectively communicates that if a person does the acts articulated in the preceding subparagraph, he or she is exposed to the penalty identified.   Further, it can be seen from other offence creating provisions in Chapter 5, that the pattern identified by de Jersey CJ is repeated consistently throughout that Chapter, including in Part 2: see the various offences set out in [84] to [88] above. Indeed, this consideration is more compelling for s. 163 Planning Act than s. 578 SPA.  As can be seen, the two penalty provisions contained in s. 578 have been consolidated into one such provision immediately after s. 163(1).
128. [128]
     Second, as de Jersey observed, if Parliament wanted to include the matters in s. 162(2) as elements of the offence, it could easily have done so.  There is nothing about the matters raised in s. 163(2) so far as I could see which would have made it difficult or even unwieldy to include them in s. 163(1). 
129. [129]
     These two considerations derive added force when it is kept in mind that it is well established law for offences dealt with both the Justices Act and the Criminal Code that statement of an offence in terms of the statutory provision which creates it comprises sufficient articulation of the legal elements of the offence.^[22]   As de Jersey CJ implicitly recognised, the unambiguous identification of the offence for the purposes of clear criminal pleading is a relevant consideration in construction. 
130. [130]
     His Honour’s third point arose from the role of s. 88(2) in relation to s. 88(1).  That role was in my view encapsulated by his Honour’s observation that “Section 88(2) specifies a situation in which the offence set out by s. 88(1) could not occur.”  In my view, it is plain from paragraphs [17] and [18] of Phillips, that de Jersey CJ considered this tended to support the conclusion that the matter in s. 88(2) was not an element of the offence.  This is inconsistent with the second reason given in Serratore, which treated an analogous circumstance as supporting the conclusion that the matters in s. 163(2) were elements of the offence. 
131. [131]
     A fourth point also arises incidentally in Phillips.  In that case, like s. 163(2), the provision being scrutinised included the words “does not apply to”.  Neither the majority, nor Justice Jerrard in the minority, considered this form of words material.  Although it was not specifically considered by de Jersey CJ, it plainly did not persuade the Court that it supported the conclusion that s. 88(2) was part of the offence.  And in Baker, in this respect, I observed of this form of words in the predecessor provision to s. 163 of the Act:

[248] The respondent advances a further proposition of construction.  He points out that s. 578(1) applies where there is no effective development permit and that s. 342(3) assumes a valid but expired development approval.  The respondent then submits that:

It is apparent from the terms of the SPA that section 578 cannot apply because it, in terms, creates an offence predicted on the absence of an effective development permit.  Section 342(3), however, is directed to the circumstance that there is a development permit in place, but development provided for in the permit does not meet a timing condition of that permit.

[249] I do not accept that this point assists the respondent’s construction.  It turns on the assumption that a development approval which has expired remains an “effective development permit”.  That is an inherently improbable construction of s. 578(1) and, if correct, would appear to have made s. 578(2)(b) otiose. 

[250] On the other hand, however, it seems to me that the form of the words in s. 578(2)(b)  do lend themselves to a similar conclusion. The subsection provides that s. 578(1) “does not apply” to development under s. 342(3).  That language is consistent with the conclusion that development under s. 342(3) is entirely outside the scope of the offence creating provision, rather than being a part of the statement of the offence.

[251] I reject the appellant’s contention that s. 578(2)(b) comprises part of the statement of the offence created by s. 578.

[underlining added]

132. [132]
     It is convenient to turn now to another consideration which arguably favours the respondent’s construction of the elements which also arose in Baker. In that case, I dealt in detail with exactly the same issue as arises here in relation to s. 578 SPA, the predecessor provision to s. 163 Planning Act.  Section 578 provided:

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. Maximum penalty—1665 penalty units.
2. (2)
   Subsection (1)—

   1. applies subject to subdivision 2; and
   2. does not apply to development carried out under section 342(3).
3. (3)
   Despite subsection (1), the maximum penalty is 17000 penalty units if the assessable development is on a Queensland heritage place or local heritage place.

133. [133]
     One issue relevant here which arose in that case was whether s. 578(2)(b) SPA was a legal element of the offence created by s. 578(1) SPA.  I concluded it was not.  Apart from the considerations in Phillips, which were relied upon in Baker, my conclusion in Baker was also based on a broad proposition of construction arising from the High Court decision in Vines v Djordjevitch (1955) 91 CLR 512, which in my view provides a fifth consideration arguably telling against the conclusion in Serratore.   The relevant observations in Baker are as follows:

[233] The appellant relied on Vines v Djordjevitch (1955) 91 CLR 512.  Again, this case was not concerned with identification of the legal elements of an offence.  Rather, it was concerned with identification of where the onus of proof lay in respect of a proviso included in the statement of a statutory cause of action against the nominal defendant.  The High Court construed the proviso as comprising a condition precedent to the statutory cause of action, and that the onus in respect of the proviso lay on the plaintiff. 

[234] The High Court dealt with that question at 518–519 as follows:

The first question which arises in considering the correctness of this conclusion is whether the burden of proving facts amounting to a compliance with the proviso rests upon a plaintiff in an action brought under s. 47(1) against a nominal defendant. 

It is said that the form of the sub-section places the burden of disproof on the defendant. For the requirement of prompt notice after the injured party becomes aware of the impossibility of identifying the car inflicting the injuries is expressed in the form of a proviso. “There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not” - per Abbott J. in Steel v. Smith (1817) 1 B & Ald 94, at p 99 (106 ER 35, at p 37). The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter...

[Underlining added]

[235] The appellant relied on the first underlined passage (or parts of it) as articulating a general principle applicable to the identification of the elements of an offence in a statute.  I do not accept that that is strictly correct.  Despite the general terms in which the Court spoke, it was concerned with a civil claim created by statute, not a criminal offence.  However, it can be accepted that the question of whether an exception, proviso or condition is one of the elements of an offence is a question of construction of the particular statute, as was made clear in MacDonnell Dow above and Phillips v Spencer (considered below).  It can also be accepted that the observations of the High Court can provide assistance in that process of construction in this case. 

[236]  …

[237] It is instructive to look at how the Court resolved the question of construction before it in Vines.  The Court focused on the guiding principle articulated in the second underlined passage above and observed:

But the operative words express a negative co-extensive with the affirmative imposition of liability in the main provision. In terms the proviso makes it incumbent upon everybody claiming under the main provision to give the notice and to do so as soon as possible after knowledge of the impossibility of establishing the identity of the car responsible for his injury. It is expressed as a statement of a further requirement to be fulfilled by all before the main provision can be availed of.^[23]

[238] In my view, this approach supports the conclusion that s. 578(2)(b) is not an element of the offence.  Consideration of the statutory context demonstrates that it is not a general pre-condition to all persons who might breach s. 578(1), but rather “denies the... liability in a particular case by reason of additional or special facts”, those fact being that the development is work which is being carried out after the expiry of the term of an otherwise effective development permit by use of security paid as a condition of the approval: see 346(1)(f) SPA.

134. [134]
     In my respectful view, the same reasoning applies if one reads s. 163 Planning Act as a whole.  Each of the matters in s. 163(a) to (c) “denies the... liability in a particular case by reason of additional or special facts”.  Judge Williamson’s analysis of the parts of the Planning Act picked up by those subsections (which I accept) make that clear.
135. [135]
     I now turn to the factors which were relied upon in Serratore.
136. [136]
     I respectfully observe that each of those three considerations favour the conclusion reached by his Honour.  It might be argued, however, that there are counter arguments to each which might tend to reduce their persuasiveness.
137. [137]
     As to the first reason, (see paragraph [104] above), that point turns on construing s. 160 as applying only to an exemption which is expressly identified as such in the Part 2.   Except for the use of the word exemption in the heading to s. 166, the word does not appear in Part 2.  While headings are part of an Act^[24], the relevance of the heading as constructional signpost is somewhat reduced by the language of the section.  That language in s. 166 articulates the exclusion of criminal liability by the phrase “does not commit a development offence”.  The language in s. 163(2)(a) to (c) articulates the exclusion of criminal liability by the phrase “does not apply”.   It might be said that the two section each provide an exemption from the plenary statement of criminal liability in s. 163(1).
138. [138]
     As to the second reason, identified at paragraph [105] above, the central proposition is that the effect of the matters in s. 163(2) is that development covered by those provisions is always lawful, rather than prima facie offending which is excused.   The point made in the previous paragraph might answer this reason as well.
139. [139]
     The third reason, identified in paragraph [106] to [108] above, is of considerable weight, especially given his Honour’s analysis of the broader statutory context of the three alternatives.  It is certainly supported by the passage from Phillips v Spenser identified.  Although applied in the minority judgment, the principle is nonetheless a recognised one, albeit one which must be applied with some circumspection: see Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 per Callinan J at [94] to [96] and the cases cited by his Honour.  However, even taking those warnings into account, this point has considerable weight in a case of this kind, where as his Honour has demonstrated, the complainant will necessarily have access to the evidence which might make good the non-application of the offence, while the defendant might not.  (Although it should also be borne in mind that there is well established distinction between the elements of the offence and other matters upon which a prosecutor bears the onus.^[25])  
140. [140]
     Finally, I do not draw much support for my preferred view from the other case relied upon by the respondent.  McDonald v Holeszko [2018] QDC 204 and Baker v Smith [2021] QCA 66 both relate to s. 578.  In McDonald, there was no considered argument on the question of identification of the elements of the offence.  The observations in Baker in the Court of Appeal were tentative and not directly on point, being concerned with onus not elements of the offence. 
141. [141]
     Taking all the considerations into account, the better view in my opinion is that the matters articulated in s. 163(2) are not elements of the offence created by s. 163 Planning Act.  I respectfully acknowledge, however, the force of the reasons given in Serratore. 

The comity issue

142. [142]
     Having reached my own conclusion that the better view is that s. 163(2) does not articulate elements of the offence, I must grapple with the second stage of the comity analysis articulated by Lindgren J: do I consider the decision in Serratore plainly wrong?  Justice Lindgren recognised the difficulty with the concept of plainly wrong:

[74]  While the expression “clearly wrong” and “plainly wrong” may be open to criticism, they usefully remind the later judge of the interests of justice in consistency of decision-making in a system of which the individual judge is but a part. The “choice” to follow an earlier inconsistent decision of co-ordinate authority is, however, as a matter of law, discretionary and depends on the circumstances of a particular case. These will properly include considerations of the length of the period during which the earlier decision has stood, and whether it has been relied upon in the arrangement of human affairs.

143. [143]
     While I accept his Honour’s linkage of plainly wrong with underlying policy considerations which might inform the decision whether to follow a decision which one considers not the better view, this passage does not attempt to articulate the difference between disagreement and plainly wrong, or more bluntly, wrong and plainly wrong.
144. [144]
     Rebecca Lucas’ recent article^[26] summarises some recent authority on the issue.  She writes (renumbering her footnotes to incorporate them into this judgment):  

Caution has been urged against being overly prescriptive as to what ‘plainly wrong’ connotes or attempting to exhaustively define criteria as to when the threshold will be met. It has been noted that the circumstances in which a court might appropriately depart from a previous authority may vary. It will depend upon the nature of the controversy before the court, the strength of the arguments and, clearly, the degree to which the subsequent court is persuaded of the error in the decision under scrutiny^.[27] However, despite these observations and cautions, there has been some explanation of what state of satisfaction ‘plainly wrong’ requires from judges of Australian courts.

While minds might differ on an issue, this is not sufficient to found a conclusion that a decision, supported by clear reasons for judgment after full argument, is plainly wrong.^[28] However, the point of equilibrium in the balance between departing or following a decision has been explained by Greenwood J as possible of being reached ‘by recognising the required emphasis necessary in concluding that an earlier authority is “plainly wrong” or “clearly wrong”’.^[29] The question of whether a decision is plainly or clearly wrong is not a question answered by the obviousness of the error, that is whether the error is plain on the face of the judgment. Rather, as Allsop J (as the Chief Justice then was) has explained, the threshold is satisfied when the court is convinced or persuaded of the earlier error to the requisite degree.^[30] Plainly or clearly are terms which ‘bespeak the quality of the error or the level of conviction of error that must be perceived’.^[31]

The New South Wales Court of Appeal has explained that the terms ‘plainly wrong’ and ‘clearly wrong’ may be understood as focusing on at least one of the following features of a ruling:^[32] (1) the existence of error is immediately apparent from reading the relevant judgment; (2) the strong conviction of the subsequent court that the earlier judgment was erroneous, not merely the consequence of a choice of approach which was open, but no longer preferable; and (3) the nature of the error that can be demonstrated with a degree of clarity following the application of correct legal analysis. Additionally, in determining whether to depart from a previous authority, the courts have regard to a range of discretionary considerations,^[33] with guidance being taken from the approach adopted and principles applied by the High Court when contemplating departing from its own previous decisions.^[34] The principles of transparency, consistency and certainty are but some of the considerations that have been identified.^[35]

145. [145]
     Also relevant in this assessment are the comments of the Court of Appeal in Lynch set out above where a Court is dealing with a statutory provision which has been previously construed in a different manner.
146. [146]
     Bearing those considerations in mind, I intend to follow Serratore.  
147. [147]
     I do not consider Serratore to be plainly wrong.  While I think the alternative construction is the better view, the divergence is one which involves the consequence of a choice of approach which was open to his Honour.  Reasonable minds can differ as to this kind of construction problem, not only as to the considerations which are relevant to resolving the construction issue, but as to the weight to be given to them.  I refer to Chief Justice de Jersey’s comment in Phillips itself that determining elements of offences in cases like this is rarely crystal clear.  I echo Justice Barr’s comment in Firth v Namarnyilk [2021] NTSC 75 at [37] applying Undershaft (No 1):

For reasons which I explained in some detail earlier in this judgment, I disagree with the statement of Kelly J in Arnott v Blitner extracted at [9] above. However, the matter is not clear-cut, and I would not go so far as to say that her Honour’s statement was “plainly” or “clearly” wrong. The correctness of her Honour’s statement is a matter on which learned minds may differ, as is often the case in relation to questions of statutory interpretation.

148. [148]
     I also consider that the observations in paragraph [70] of Lynch set out above apply here.
149. [149]
     It might be thought that I ought to prefer my own view because the considerations relied upon in this judgment were not dealt with by his Honour and seemingly not referred to by counsel. ^[36]  However, that consideration is not sufficient to persuade me that his Honour’s judgment ought not to be followed, not least because his Honour’s analysis focused on the unique statutory characteristics of s. 163(2) in the context of the Planning Act. 
150. [150]
     Having reached that conclusion, I turn to the third step identified by Justice Lindgren.  I consider that the discretionary factors strongly favour following the   Serratore.    The reasons are as follows:

1. First, it is highly desirable that the Court speak with one voice on the identification of the elements of an offence which is fundamental to the integrity of the Planning Act, itself the fundamental piece of legislation in the administration of planning Queensland.^[37]  Unless the divergence in construction between this case and Serratore was quickly resolved by the Court of Appeal, it would potentially make administration of the enforcement and prosecution provisions of the Planning Act difficult, not only for litigants, but also for parties;
2. Second, while his Honour’s judgment has only stood for eight months, prosecutions under s. 163 are common and a change in direction would potentially impact on several extant cases.  I might put less emphasis on this if the effect of following his Honour put defendants at a disadvantage, but the contrary is the case.  His Honour’s judgment creates a heavier burden on the prosecution of offences under the section; and
3. Third, I think it makes no difference that his Honour’s judgment was given in the Planning and Environment Court rather than this Court.  Technically, that Court is a court of co-ordinate jurisdiction rather than the same Court.  As a matter of substance, however, the two Courts are closely linked by a common judiciary.  Further the two Courts deal with two sides of the same coin when it comes to the operation of s. 163, as the circumstances of this case (prosecution appeals, the District Court) and Serratore (enforcement notices, the Planning and Environment Court) demonstrates.

Consequences of following Serratore

Complaint does not disclose an offence

151. [151]
     If a complaint or indictment does not articulate all the legal elements of an offence, it fails to engage the jurisdiction of the Court to hear and determine a matter.  The complaint will be invalid and a conviction on the complaint must be set aside.^[38]  I mentioned this matter to the parties during argument, but the appellant did not seem fully to adopt it.  However, to my mind the issue goes to the jurisdiction of the Magistrates Court to hear the complaint (and to this case to hear the appeal).  The complaint does not allege three of the elements of the offence created under s. 163 Planning Act.  It is therefore not a valid complaint.  There is no application before the Court to amend the complainant (though whether such an order could be made is another matter).  The conviction must be set aside.

Section 163(2) not excluded by the evidence

152. [152]
     Even if the above were incorrect, the appeal would still succeed.  The effect of following Serratore is that the prosecution had to exclude each of the three possibilities raised by s. 163(2) beyond reasonable doubt.
153. [153]
     Mr Power KC, who appeared for Ms Browning, contended that the evidence which was led at trial did exclude each of those matters beyond reasonable doubt.  I was not persuaded of that in relation to the matter in s. 163(2)(a) or (c).
154. [154]
     As to 162(2)(a), the only evidence at trial which Mr Power could identify which excluded that circumstance beyond reasonable doubt was the evidentiary certificate tendered at trial stating no development approval had been issued for clearing or filling.  As Mr O'Brien submitted, and Mr Power accepted, that was not evidence that approval for the development work did not arise under s. 29(10) because the mechanism for approval under that part of the Planning Act did not result in the issue of a development permit.^[39]
155. [155]
     Mr Power also submitted that as a matter of practicality, s. 29(10) could not apply to Mr Vukolic on the other uncontroversial facts in the trial.  He submitted that given the timing that Mr Vukolic acquired the property, he would have been outside the time limited for making an application to carry out development under a superseded planning scheme. I am also not persuaded of that for the reasons given by Mr O'Brien.  His principal submission was that regardless of Mr Vukolic’s position, approval might have been given to or obtained by a predecessor in title to Mr Vukolic, which approval could benefit Mr Vukolic as successor in title.^[40]  I also agree with Mr O'Brien’s submission that there was no evidence excluding s. 163(2)(b) for the reasons given at the hearing.^[41]

Leave to re-open refused

156. [156]
     If I concluded that I would follow Serratore, and that s. 163(2) was not excluded on the evidence at trial, Mr Power sought leave to re-open the prosecution case on the appeal to tender an evidentiary certificate which in terms excluded each of the alternatives in s. 163(2)(a) to (c).  Assuming, as I do, that this certificate was prepared after review of the relevant BCC files, it does rather tend to show how relatively easily Council can access that information as compared to a potential defendant, a matter of significance to Judge Williamson’s analysis. (Further, it seems to me that the absence or presence of any record in Council files of documents relevant to s. 163(2)(a) to (c) would be a matter which the complainant as prosecutor would be obliged to disclose.) 
157. [157]
     I will not grant leave to re-open the prosecution case.  I refuse that leave for the following reasons:

1. First, the complaint does not disclose an offence known to the law. I am uncertain whether the complaint can be amended to address that defect, but no application to so amend is before the Court and it is difficult to see why it would be granted at this stage of the proceeding;
2. Second, this matter was raised at trial by the defendant.  The complainant could have sought to re-open at the trial if she had considered that the correct course to take (the point appears to have arisen in final submissions).  No such application was made at the time.  I seems unfair to permit it to be done now in those circumstances.  Criminal trials, even less than civil trials, are not dress rehearsals; and 
3. Third, I doubt that the procedure sought by the complaint is a fair one.  The defendant would have to have a reasonable opportunity to investigate the correctness of the evidentiary certificate. 

Conclusion

155. [158]
     Although ground one has failed, ground two has been established by the appellant.  The convictions must be set aside.  That will have broader implications for the balance of the matters subject to appeal.  I will hear the parties as to the correct form of orders consequent on my conclusion and costs.