Brisbane City Council v Deen [2009] QMC 1

MAGISTRATES COURTS OF QUEENSLAND CITATION: Brisbane City Council v Deen [2009] QMC 001 PARTIES: BRISBANE CITY COUNCIL (complainant) v SULTAN MOHAMMAD DEEN (defendant) FILE NO/S: MAG53263/08(9) DIVISION: Magistrates Court PROCEEDING: Complaint ORIGINATING COURT: Magistrates Court at Brisbane DELIVERED ON: 12 March 2009 DELIVERED AT: Brisbane HEARING DATE: 2 March 2009 MAGISTRATE: Previtera T ORDER: Defendant acquitted CATCHWORDS: LOCAL GOVERNMENT – BUILDING CONTROL – PROSECUTION – DEVELOPMENT WITHOUT PERMIT - defence of honest and reasonable but mistaken belief that permit had been obtained COUNSEL: Neville appeared for complainant TA Ryan appeared for defendant SOLICITORS: Complainant on its own behalf John O’Connor for defendant [1] In this matter, the Defendant is charged that, contrary to s 4.3.1 Integrated Planning Act 1997 (the Act), he carried out assessable development, namely material change of use and building work (demolition) without an effective development permit,1 in relation to premises at; 103,105 and 107 Allen Street; 12 and 14 Nudgee Road; and 588-592 Kingsford Smith Drive, Hamilton, Brisbane, on 15th December 2007. The Defendant is also charged that, contrary to s 4.3.3(1) of the Act, he contravened a 1 Charges 1 – 6; and Charges 8-15 inclusive -- 1 of 8 -- 2 development approval in relation to the premises at 107 Allen Street, Hamilton, Brisbane, on 15th December 20072. [2] The matter proceeded summarily. [3] The onus is upon the prosecution to prove each and every element of the fifteen (15) charges comprising the complaint of Christopher McMahon. The standard of proof is the criminal standard, of proof beyond a reasonable doubt. [4] The prosecution called the following witnesses:- 1. Christopher McCahon, the complainant, as the Principal Investigator Enforcement Team, Compliance and Regulatory Services, Customer and Community Services Division, Brisbane City Council; 2. David William Low, Senior Investigator at the Brisbane City Council; 3. Darren Achammer, Self Employed Traffic Controller with “Bottom Line Traffic Control”; and 4. Adam Mercep, Senior Built Environment Officer whose role in this matter was limited to acting as the Exhibit Officer in relation to the execution of warrants upon the offices of Deen Bros/ Deen Bros.Holdings Pty Ltd/ Deen Brothers and Associates. [5] The Defendant gave evidence on his own behalf during which he introduced evidence of an honest and reasonable, but mistaken belief as to the existence of the required development permits. As such, the defendant has raised the excuse provided for by s 24 Criminal Code Act Qld. The onus is on the prosecution to negative the excuse beyond reasonable doubt. [6] The following matters are not disputed:- 1. Chilmac Pty Ltd is the owner of all of the properties the subject of the complaint (the subject premises). 2 Charge No. 7. -- 2 of 8 -- 3 2. On the 27th July, 2007 George Halliday of Chilmac Pty Ltd sent an email to Deen Bros requesting that the Defendant give him “a call re a job at Allen and Nudgee Roads, Hamilton to arrange a meeting on the 1st August to arrange demolition”.3 3. A site inspection took place on the 1st August, 2007, at which time the defendant told representatives of Chilmac Pty Ltd that “we would have to wait for the approvals before we would do the demolition”.4 4. Immediately after that site inspection, the Defendant, on the letterhead of Deen Bros., sent a quote to Chilmac Pty Ltd (attention George Halliday) for demolition of the subject premises.5 5. Thereafter, in late November 2007, a representative of Chilmac Pty Ltd contacted the defendant confirming that they had the approvals and that they wanted to firm up the price for demolition.6 6. The defendant then undertook another site inspection and gave a verbal quote for the demolition in the sum of $85 000.00,7 confirming the quotation in writing later that same day.8 Steven Conn from Chilmac Pty Ltd then telephoned the defendant and, after further negotiations, a final price of $80 000.00 was agreed. 7. A further and final revised written quote reflecting this sum was faxed to Chilmac on 27th November 2007 and included the following:- “Chilmac Pty Ltd is responsible for disconnection of all services and obtaining all necessary approvals.” 8. On the 30th November, 2007 the Defendant signed and dated a Work Method and Site Plan and Safety Plan9 (the Plan). The coversheet to the plan was on the letterhead of Deen Bros., although the Plan itself referred to Deen Brothers & Associates. Page 4 of the Plan document provided:- Scope of Works: 3 houses in Allen Street ad 3 houses in Nudgee Rd. All houses are high set 2 level with iron roof timber framing. Procedure for carrying out works:- 1. To determine if there is any asbestos containing materials. 2. Remove all asbestos containing materials (if found). 3. To carry out mechanical demolition for the rest of the structure. 3 Exhibit No. 14 4 Unchallenged evidence of the defendant. 5 Exhibit No. 6 6 Unchallenged evidence of the defendant. 7 Unchallenged evidence of the defendant. 8 Exhibit 8. 9 Exhibit No. 9 -- 3 of 8 -- 4 4. Load out the debris and remove off site. Prior to commencement on site the principal contractor will disconnect all services and will have in place all necessary approvals.” 9. The plan was transmitted to Chilmac Pty Ltd on 30th November 2007 on a Document Transmittal sheet titled Deen Bros., on which was contained the following remarks - “Please Note: - Principal Contractors to have all services disconnected and have all necessary approvals.” The original of the document transmittal sheet10included a signature said to be that of Nathan Conn for Chilmac. 10. Also on 30th November 2007, Nathan Conn signed the original of the revised quote dated 27th November 2007 and paid to the defendant, by cheque made out to Deen Bros and dated 29th November 2007, the agreed deposit of $20 000.00.11 11. Thereafter, also on the 30th November, 2007, the Defendant forwarded a written order on Deen Bros. Holdings Pty Ltd letterhead, to WBS Demolition for removal of the asbestos from the subject premises for a quoted price of $15,000.00. That work order included the following:- “The owner being the principal contractor has confirmed that all services have been disconnected and all necessary approvals are in place. Works are to be commenced immediately and completed by 22nd December 2007”.12 Work commenced at the site the next day.13 12. The defendant then engaged Darryl Achammer to obtain permits for traffic lane closure on a weekend to enable a truck to be stood at the site for a “verandah removal”14. 13. On the 7th December, 2007 Mr Achammer applied to the Brisbane City Council (BCC) for temporary lane/road closure for the daylight hours between 0600 hours and 1800 hours on the 15th December, 2007. That time period was not acceptable to the Council which, on the 12th December 2007, instead granted a permit between 2000hours on 15th December and 0600hours on 16th December 200715. 14. Mr Achammer then applied to the Queensland Police Service for a permit during the same period, which permit was granted on 13th December 2007. However, 10 Exhibit 13. 11 Unchallenged evidence of the defendant. 12 Exhibit 5. 13 Unchallenged evidence of the defendant. 14 Exhibit 11. 15 Exhibit 11. -- 4 of 8 -- 5 thereafter on that same day, Mr. Achammer applied for and was granted a permit for an earlier period between 2000 hours on Friday 14th December 2007 and 0600 hours on Saturday 15th December 2007. There is no evidence to suggest whether a further permit from the BCC for the same period was necessary or was obtained. 15. On the 15th December, 2007 the subject premises were demolished under the supervision of the defendant at approximately 0400 hours. DISPUTED [7] The defence submits as follows:- Ground No. 1 – an improper prosecution [8] The Defence argues that the prosecution against the Defendant in his personal capacity is improper and is more appropriately one against the corporate entities of Deen Bros., Deen Bros. Holdings Pty Ltd and/or Deen Brothers and Associates; given that:- (a) it was the corporate structure through which all of the contractual arrangements with respect to the demolition were made; (b) the Defendant is not and has never been a Director or Executive officer of the corporate entities. His role, it is argued, is limited to that of Manager/supervisor within the corporate structure. As such, given that in that capacity, he is a corporate representative, whose acts or omissions can be taken to be acts or omissions of the company, the more appropriate persons to have been prosecuted were the corporate entities and their directors and executive officers. [9] In response to the same argument in the “no-case” submission made by the Defence, this court determined that it was appropriate for the prosecution to have been brought against the Defendant in his personal capacity. [10] The court maintains this decision for the following reasons:- 1. The uncontested evidence of the Defendant is that he is the owner of the business name Deen Brothers Group as a business name; and that the Deen Brothers Group comprises Deen Bros; Deen Bros Holdings Pty Ltd and Deen Bros and Associates. 2. The letterhead of each of these entities was variously used from time to time in the negotiations and contractual arrangements in relation to the demolition, with no consistency or explanation as to the inconsistency. -- 5 of 8 -- 6 3. The defendant was contacted personally by those with whom negotiations and contracts were made. The defendant personally undertook all negotiations, site inspections and quotations without reference to any other person, or director/executive officer of any of the entities. The defendant personally authorised all of the work required of sub-contractors to the demolition and personally engaged them. The use of various forms of letterhead of each of the corporate entities does not alter this circumstance. 4. The defendant signed all of the documentation concerned in the demolition in his personal capacity. 5. There was no other person involved on behalf of any of the corporate entities within the Deen Brothers Group; no other person referenced in any of the documentation; and the company/business group name/seal/signature was never used or referenced in any of the negotiations or contractual arrangements. 6. The court was left with an impression that there is a degree of casualness in the use of the various corporate entities and corporate names such that it is difficult to know who or what was the contracting entity. The one consistent factor is the presence and involvement of the defendant. Ground No. 2 - The Prosecution has not excluded the application of section 24 of the Criminal Code. [11] This court accepts this submission made on behalf of the Defence for the following reasons:- 1. The Defendant was not successfully challenged in relation to his evidence of the following:- (a) That in over 40 years in the demolition business, he has never obtained development permits, as that is the responsibility of the owner, the architect on behalf of the owner or the builder on behalf of the owner. It is not, and has never been, within the scope of works of the Deen Brothers Group; (b) That in over 40 years in the demolition business, he has never requested to sight demolition approval/permits before undertaking demolition work; (c) That the quality assurance system in place at Deen Bros does not include any requirement that copies of demolition approvals be requested in advance of demolition work being undertaken; -- 6 of 8 -- 7 (d) That, in relation to the traffic control/lane closure permit, the veranda removal was the only thing for which the permit for traffic closure was required. A traffic permit was not required to get the equipment needed for demolition of the buildings on to the site because there was clear access to the site for that equipment. (e) That the only approvals for which the defendant considers the Deen Brothers Group are responsible for obtaining, when engaged to undertake demolition work, are the traffic control permits. (f) That the defendant was told by representatives of Chilmac Pty Ltd that all of the approvals were in place and that they had signed all the documentation to that effect. This is not inconsistent with what the defendant told Inspector McCahon in the record of interview.16 [12] Furthermore, there is no evidence: (a) That development permits only allow daylight demolitions; (b) As to what a development permit allows, disallows or requires: that is, whether or not there is a requirement for the owner or person undertaking the demolition to advise residents within the area of the demolition, of the date, time and other details of the demolition’ (c) That the defendant had the knowledge other than that which he states he had in relation to the approvals; or that the defendant was not told by Chilmac Pty Ltd that they had obtained the development permits; (d) That the period of four months between the site inspection on 1st August 2007 and the agreement on 30th November 2007 (after notification that the approvals had been obtained) is not a time period during which the relevant permits would be able to be, and are ordinarily obtained; (e) That there was signage or a lack of signage on the subject premises during periods when the defendant was present which should have or could have alerted the Defendant that no development application had been made and/or that there were no development approvals in place; (f) As to the existence or otherwise of a demolition/development industry practice that those whose responsibility it is to obtain development approvals for demolition work, for whom another is engaged, are expected as a matter of reasonable 16 Exhibit 2. -- 7 of 8 -- 8 business efficacy, to produce such approvals, or reasonably expect to be called upon to produce such approvals by those undertaking the demolition work. [13] For those reasons, and notwithstanding concerns the court has with respect to the business practices of the defendant by not taking the prudent course of having copies of approvals to demolish produced to him, this court is not satisfied that the prosecution has satisfied the onus upon it of negativing the excuse raised on the evidence by the Defendant that he had an honest and reasonable, but mistaken belief in the existence of the development approval permits. [14] The defendant is acquitted of all of the charges the subject of the complaint. -- 8 of 8 --