Browning v Vukolic

The respondent had, in the District Court, successfully appealed his conviction on three charges of carrying out assessable development without a permit on land that he owned. The applicant sought to overturn the District Court’s decision. The Court of Appeal was ultimately required to determine whether the elements of the offence had been properly articulated in the original complaint, and whether the complainant was the applicant as an employee of Brisbane City Council, or the Council itself. Considering the construction of the legislation, relevant case law and the form of the complaint itself, the Court determined that the District Court had erred in setting aside the conviction; the complaint had been correctly articulated. The Court of Appeal further held that the complainant was the applicant personally as an employee of the Council, and not the Council itself.

Mullins P, Boddice JA, and Crow J

18 October 2024

The applicant, in the District Court, successfully appealed his conviction on three charges of carrying out assessable development without a development permit on land that he owned. [1]. The offence is drawn from s 163(1) Planning Act 2016 (“the Act”). The Act relevantly provides the following:

“163Carrying out assessable development without permit

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

…

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

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

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

(c)under section 88(3).”

The respondent had successfully challenged his conviction on the basis that the complaint setting out the charge had only set out the matters in s 163(1), and not the matters in s 163(2). [1]. The respondent had also unsuccessfully argued that the complaint had been commenced out of time, a fact which turned on whether the complainant was the applicant (Ms Browning), an employee of Brisbane City Council, or the Council itself. [3]. The District Court had concluded that Ms Browning was the complainant and that the complaint had thus been brought within time. [3].

The Court of Appeal was required to consider both:

(1)whether a proper articulation of the elements of the offence under s 163 of the Act must include the matters in s 163(2); and,

(2)whether the District Court had erred in finding that Ms Browning was the complainant.

Were the matters in s 163(2) elements of the offence under s 163

Her Honour Mullins P, in authoring the judgment, determined that the District Court had erred in finding that a proper articulation of the offence under s 163 required the inclusion of the matters in s 163(2). [52].

Her Honour began by considering the language and purpose of various provisions of the Act, and cases which had dealt with similar provisions including Serratore v Noosa Shire Council [2022] QPELR 505, which had been the basis of the District Court’s conclusion that a proper articulation of the elements of s 163 required the inclusion of the matters under s 163(2). [33]–[39].

Her Honour concluded that the inclusion of the phrase “necessary development permits” under s 163(1) meant that the matters set out in s 163(2) were not required to be included as elements of the offence – if one of those matters arose, then by definition such a permit would not be “necessary”. [48]–[52].

Whether Ms Browning or Brisbane City Council was the complainant

This question turned on whether Ms Browning had brought the complaint herself in her role as a public officer, or whether she had brought it as an agent of the Brisbane City Council; if the latter, then the complaint against the respondent had been out of time. [53]–[54].

Her Honour distinguished the case of Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98, on the basis that in that case the relevant complainant had described themselves as “authorised agent for and on behalf of the Ipswich City Council”, and that the legislation in that case had required the prosecution to be commenced by the local government in its own name. [55]. The intent of Ms Browning to bring the complaint in her own name was successfully implemented in the terms in which the complaint was drafted and signed by her, there being no reference to her being an agent acting on behalf of Brisbane City Council. [58].

Disposition

The applicant’s appeal was allowed. Two grounds of appeal from the original Magistrate’s Court proceeding, which had not been considered by the District Court because of its other conclusions, were remitted to the District Court for consideration.

B Wilson of Counsel