McMULLEN, Tony (in his capacity as General Manager of Glenorchy City Council)

APPEALED FROM: Aviation Consolidated Holdings Pty Ltd v McMullen [2023] TASSC 18

JUDGMENT OF: Shanahan CJ, Cuthbertson J, Porter AJ

Magistrates - Appeal and review - Tasmania - Motion to review - Other matters - Appellant found guilty of failing to comply with building order - Where magistrate's findings based on documentary evidence - Motion to review dismissed by primary judge - Magistrate could reasonably have relied on the documents - Findings of the magistrate reasonably open - A magistrate acting reasonably could have found the complaint proved - Primary judge not shown to have been in error in dismissing motion to review.

Building Act 2016

He Kaw Teh v R [1985] HCA 43, 157 CLR 523

Hindrum v Lane [2014] TASFC 5

Jones v Bonde [2021] TASSC 35

Kent v Gunns Limited [2009] [30][2009] TASSC 30; , 18 Tas R 454

Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173

Phillips v Arnold [2009] TASSC 43, 19 Tas R 21

Robinson v Chatters [2010] TASSC 66

Judgment Number: [2025] TASFC 6

AVIATION CONSOLIDATED HOLDINGS PTY LTD v TONY McMULLEN

(in his capacity as General Manager of Glenorchy City Council)

AVIATION CONSOLIDATED HOLDINGS PTY LTD v TONY McMULLEN

(in his capacity as General Manager of Glenorchy City Council)

1. I have had the opportunity to read the draft judgment of Porter AJ. There is nothing I wish to add. I would dismiss the appeal for the reasons given by his Honour and join in the orders he proposes.

AVIATION CONSOLIDATED HOLDINGS PTY LTD v TONY McMULLEN

(in his capacity as General Manager of Glenorchy City Council)

1. I have read a draft of the decision of Porter AJ and I agree that the appellant's appeal should be dismissed for the reasons stated by him.
2. I wish to add something further about the argument concerning the statement of facts and contentions in the Resource Management and Planning Appeal Tribunal (RMPAT) appeal. The appellant asserts that because the statement of facts and contentions was not in evidence, it was impossible for the Chief Magistrate to make findings about whether the appellant complied with the agreement as to the remedial work. As Porter AJ has noted, the evidence is not capable of supporting an inference that anything other than an extension of time in which to comply with the building order was agreed.
3. No attempt was made by the appellant to explain how any such agreement as to remedial work (if it existed) was relevant to the offence with which it was charged. In my view, it was not relevant in light of the way in which the appellant ran its case. It is necessary to consider the relevant provisions of the Building Act 2016 (the Act) to explain why that is so.
4. The appellant was issued with a building notice by the permit authority (the Glenorchy City Council) pursuant to s 237(2) of the Act on 5 October 2020 which referred to "Unapproved building work (fill) carried out without a building permit or other valid authorisation". The notice required the appellant to show cause within two days why it should not immediately cease work on site and remove the unapproved building work (fill) in accordance with the Act. The appellant responded on 7 October 2020 confirming works had stopped. Mr Ters, on behalf of the appellant, stated he did not "believe I should be required to remove the fill. I should be given the opportunity to gain approval rather than demolish". He also indicated he awaited "confirmation of the withdrawal" of the building notice.
5. On 30 October 2020, and in light of the appellant's failure to gain approval for the unauthorised fill placed on site, the building order was issued pursuant to s 247 of the Act. This provision concerns building work performed in contravention of the Act where the permit authority does not revoke a building notice in respect of that building work. A building order under s 247 of the Act is to require the owner, at the owner's choice, to demolish the building work or building or to complete any remaining building work in accordance with the Act. These were the options set out in the building order.
6. The building works in this case were permit building works. The Act requires that permit building works be conducted in accordance with a valid building permit issued in respect of the work: see s 148(1). The permit, in this case, included a condition "As per Certificate of Likely Compliance No 17.0049". That certificate was attached to the permit and bears a stamp indicating it was one of the documents relevant to the permit. An application for a building permit is required to be accompanied by a certificate of likely compliance that is in force in respect of the proposed permit building work: s 139(2)(b)(i). The certificate of likely compliance in this instance was prepared by a building surveyor, Jessica Critchley. It notes that a number of documents and matters were taken into account for the purposes of s 138 of the Act when considering the appellant's application for the certificate of likely compliance. Those documents included the plans relied upon by the respondent to identify where the appellant was permitted to introduce fill to the site. The certificate of likely compliance also imposed a condition requiring "The engineer to confirm the controlled fill has been placed and compacted in accordance with the approved plans and acceptable practice methods".
7. A person may, however, perform permit building work that varies from the building permit if the work is performed in accordance with the written approval of the relevant building surveyor and the approval has been obtained before performing the building work that varies from the permit: s 148(2) of the Act. There was no evidence before the Chief Magistrate to suggest s 148(2) of the Act was engaged.
8. Section 246(8) of the Act creates the offence with which the appellant was charged. It provides that a person served with a building order must comply with the order. Section 246(9) of the Act provides that a person may not be found guilty of an offence under the Act in respect of work performed in accordance with a building order. The appellant has never suggested the building order in this case was issued otherwise than in accordance with the requirements of the Act.
9. Ultimately, the building order required the appellant to demolish the non-compliant works, which in this case required the removal of the unauthorised fill, or complete the building works in accordance with the permit. In either case, the permit was determinative of where fill was permitted to be introduced onto the site unless the permit was varied in accordance with the terms of s 148(2) of the Act. As I have already noted, no such variation had been obtained by the appellant.
10. Section 246(8) is a strict liability offence; no guilty knowledge or intent is required to be proved. Consequently, a defendant may avoid criminal responsibility if they act under an honest and reasonable mistake as to the existence of facts, which, if true, would have made their conduct innocent: He Kaw Teh v R [1985] HCA 43, 157 CLR 523. I can detect no suggestion in the appellant's arguments before the Chief Magistrate, Marshall AJ or this Court that such a ground of exculpation arose in this case. If the appellant sought to rely on honest and reasonable mistake, it would have been required to first satisfy an evidentiary onus to raise the ground of exculpation. Then, and only then, would the prosecution bear the legal burden of proving beyond reasonable doubt that the appellant did not have such an honest and reasonable but mistaken belief: see Hindrum v Lane [2014] TASFC 5 at [10]- [13] per Tennent J; at [70] per Pearce J. In this case, there was no evidence sufficient to raise the issue. As Porter AJ has outlined, the cross-examination of Mr Jeffes did not adduce any evidence that the Facts and Contentions filed with RMPAT described the unapproved fill or fill batter. Consequently, it was not necessary for the Chief Magistrate to make findings as to the appellant's compliance or otherwise with any matters addressed in the Facts and Contentions filed with RMPAT.

AVIATION CONSOLIDATED HOLDINGS PTY LTD v TONY McMULLEN

(in his capacity as General Manager of Glenorchy City Council)

1. The appellant was charged on the complaint of the respondent with failing to comply with a building order in breach of s 246 of the Building Act 2016. That order was dated 30 October 2020 with a breach alleged to be a continuing one from 22 January 2021. The complaint concerned a quantity of soil or "fill"; more particularly, whether a quantity of fill was where it ought not to have been pursuant to a building permit issued to the appellant for the construction of a residence at 10 McGill Rise, Glenorchy.
2. On 16 December 2022, Chief Magistrate Geason found the complaint proved. The appellant moved to review that order on the ground that it was not open to the magistrate, acting reasonably, to find the charge proved beyond reasonable doubt. On 22 June 2023, Marshall AJ dismissed the motion. This is an appeal from that order of dismissal. For the following reasons, I would dismiss this appeal.

1. The following facts are uncontentious. The appellant was issued a building permit by the Glenorchy City Council for the construction of a single dwelling on the site. The slope of the block of the land was downwards from the road frontage towards the rear boundary, closely beyond which was a residence in a cutting in the bank, 12 McGill Rise. The evidence showed that the fall down the bank from the front of the appellant's block to the rear was about six metres. The permit allowed fill to be placed in a particular location for a pad for a concrete slab. The drawings for the residence in evidence allowed for a garage at the front of the residence to be erected on the slab, with the slab extending to support a dining room and part of a lounge room behind the garage. Beyond that, a floating floor was to be constructed, supported by three rows of four piers. Various plans and drawings were in evidence before the magistrate. In broad and non-technical terms, the fill, including the pad batter, was not to extend very much beyond the rear edge of the slab.
2. The apparent existence of unauthorised fill was first observed in January 2020, but discussions with George Ters, on behalf of the appellant, took place in relation to him applying for a variation to the building permit. That application was made but ultimately not approved due to a failure to submit required information. On 5 October 2020, Dylan Jeffes, the co-ordinator of Building and Plumbing Services at the Council, inspected the site and then issued to the appellant a building notice requiring it to show cause within two days why specified work should not be carried out. That specified work was to stop work and remove unapproved fill. An accompanying letter referred to an embankment at the rear of the property. On 7 October 2020 Mr Ters emailed the Council and advised that the work had stopped, but that he did not believe that he should be required to remove the fill; he should instead be given the opportunity to gain approval, "rather than demolish".
3. As the fill was not removed, the Council, issued the building order. That provided the option of removing the unapproved fill and converting the site back to its natural contours within seven days or completing the remaining building work in accordance with the Building Act within 28 days. The order stated that compliance was required unless the specified timeframes were "formally extended by agreement in writing from the Permit Authority"; in this case, the Council. (It is common ground that this requirement is not derived from the Building Act, but nothing turns on this.) In response to the building order, in December 2020 the appellant took the matter to the then Resource Management and Planning Appeal Tribunal. Ultimately, an agreement was reached between the parties, and the appeal was withdrawn. The agreement related to an extension of time to 21 January 2020 to comply with the building order.
4. Mr Jeffes later went to the site on a number of occasions to check if the fill had been removed. He took a series of photographs on 21 January, 5 February, 2 March and 10 May 2021. All of these were in evidence before the magistrate. Mr Jeffes' evidence was that when he saw the site on 5 February 2021, a portion of the fill that had been seen in September 2020 appeared to have been removed, but there was a layer of fill of unknown depth, spread across the site. Things remained in that state up to and including the visit on 10 May 2021.

1. As reflected in the ground in the notice to review, at first instance the appellant was required to establish that the magistrate could not reasonably have come to the conclusion that the complaint was proved beyond reasonable doubt. Such motions to review do not involve a rehearing. This is a rehearing of the motion to review with the need to show error by the primary judge, so the approach of this Court is the same. The law about all of this has been made abundantly clear over many years: see more recently for instance: Phillips v Arnold [2009] TASSC 43, 19 Tas R 21 at [46] per Crawford CJ (with whom Blow J and I agreed); Nilsson v McDonald [2009] TASSC 66, 19 Tas R 173 at [59] per Blow J (with whom Crawford CJ agreed); Kent v Gunns Limited [2009] [30][2009] TASSC 30; , 18 Tas R 454 at [6]- [7]; Robinson v Chatters [2010] TASSC 66 at [50]; Jones v Bonde [2021] TASSC 35 at [13].
2. There were three issues that were raised by the appellant as to whether the magistrate could be satisfied beyond reasonable doubt. They were repeated before Marshall AJ and again in this Court.

1. The first is that it could not be ascertained where precisely it was that the appellant was not permitted to locate fill on the site. It was, and is, argued that the drawings did not purport to exhaustively show where fill could be located, and where the limits of the approved area fill were. The magistrate dealt with this argument by saying that the drawings detailed a concrete slab to support part of the dwelling, that the permit allowed fill to be used as the foundation for the slab, and the fill as observed by Mr Jeffes and apparent from the photographs, "is located over the site and not contained to supporting the concrete slab." The primary judge at [10] said that the respondent's contrary submission was assisted by building specification plans themselves, and there was evidence which enabled the magistrate to find as she did; the magistrate could not be said to have acted unreasonably in coming to that view.
2. In his evidence, Mr Jeffes described the location of the authorised fill by reference to a plan in a set of plans and drawings. These were the one exhibit: Ex P1; in this Court, Appeal Book Volume 1 at 45-65. The plan referred to by Mr Jeffes was "C1" at p 60. He said that the limits of the permitted fill were between the lines marked RL (reduced level) 112 and RL 115. Those lines and the area depicted by reference to the outline of the proposed dwelling are quite clear. Mr Jeffes, who has a "Certificate IV" in Residential Drafting and a Diploma in Residential and Commercial Design, was not cross-examined on this evidence.
3. As counsel for the respondent carefully explained in this appeal, the plans and drawing clearly show the location of the permitted fill. In particular, by reference to drawings F03 and S1 in Ex P1, App Bk Vol 1 pp 49, 57, it was demonstrated that the foot of the pad batter, therefore the approved fill, did not extend to a point 1800mm beyond the edge of the slab, and certainly not as far as 2700mm. Looked at from the opposite direction of the rear boundary, no fill was approved within a distance of 10.75 metres from that rear boundary. The location of authorised fill, of necessity, created an absence of authority for it to be put anywhere else. The magistrate could more than reasonably have come to the view that the plans sufficiently established where the fill was to be located, and the primary judge's conclusion was correct.

1. The second point argued is that there was no reliable evidence there was any unauthorised fill on the site after 21 January 2021. This depends on Mr Jeffes' evidence in the hearing and the photographs he took. Mr Jeffes' evidence was that on 21 January 2021, he went to the site and saw what was described as a "large fill embankment". He took photographs of that embankment; they were Ex P2 in the hearing before the magistrate: App Bk 1, pp 66, 67.
2. When he went back on 5 February 2021, he said there was still some fill material remaining. He could also see some plumbing work that indicated "the location of some of the (inaudible) fixtures within the proposed dwelling." The large embankment had been removed but there was fill generally in the same location, but it had been dispersed. He gave the evidence I earlier noted; that there was still a layer of unknown depth across the area of the site. He said there was no vegetation growing there, and it was distinguishable from the portion of vegetation at the top of the cut between the two properties. He said the remaining fill was of a lighter colour and of a finer consistency with rocks placed around the perimeter. The materials consisted right up to the area where the plumbing work was visible.
3. By reference to photographs, Ex P6 - App Bk 1, pp 81 to 94, taken that day, Mr Jeffes identified the fill sitting above the cut in the block at the rear, below which sits the residence at number 12 McGill Rise. When he returned on the later occasions, nothing seemed to have changed.
4. In cross-examination, Mr Jeffes agreed that in his experience "soil experts" were able to classify soil types, including "fill soil". He said he did not have any expertise in the classification of fill soil. He was taken to his evidence in which he described light coloured soil which did not have vegetation in it, and was asked whether he accepted he was not qualified to express an opinion whether such material was fill or not. He answered, "I, okay, yeah, yes, I - I guess I agree."
5. The appellant argues that Mr Jeffes appropriately conceded that he was not able to give such an opinion, and it would have been irrational to proceed on the basis that light coloured soil on the site was necessarily fill. It was further argued as part of this contention, that there was no evidence that the site from 21 January 2021, did not adhere to the natural contours of the land and the position of the natural ground line, as depicted in the drawings.
6. The magistrate referred to the Oxford English Dictionary definition of "fill" as "material, typically loose or compacted, which fills a space, especially in building or engineering work." The Macquarie Dictionary definition is "a mass of earth, stones etc, used to fill a hollow". There is no argument about this.
7. It is clear to me that the Exhibit P6 photographs shows what Mr Jeffes described. The bank is covered with what appears to be a gravelly type of soil, lighter in colour than that which is apparent in the face of the cut at the rear of 12 McGill Rise. It was reasonably open for the magistrate to have found that what Mr Jeffes described was fill. The lighter soil is very similar to that which can be seen within the large embankment, which he observed and photographed earlier. There is a large mass of what appears to be light soil within the centre of that embankment, down to the apparent ground level. Further, in my view it can safely be inferred from Mr Jeffes' evidence and the photographs (Ex P6) and the plans (Ex P1) that the plumbing is at the rear of the proposed construction beyond where the fill pad was supposed to end, thus marking the line of the fill at the top of the bank.
8. It was also reasonably open, as the primary judge concluded, for the magistrate to find that this fill did not adhere to the contours of the land. Mr Jeffes' opinion is borne out by an examination of the photographs, particularly those in Ex P6. The edge of the driveway to No 12 McGill Rise is plainly at the level of the land at that point. Bearing in mind that interpretation of photographs should be approached with caution, in my opinion the photographs show that the land slopes down and away from that point along the rear boundary of No 10 McGill Rise. This is in part demonstrated by the line of vegetation in that the top of the cut is marked by that line.
9. That there is a slope along the length of the rear of number 10 down and away from the driveway of No 12 is also confirmed by the contour lines shown on Ex P1, plans S27 and C1; App Bk Vol 1 pp 46 and 60 respectively. In my view the photographs are capable of being taken to show that the fill was relatively uniform across the bank in the vertical plane, indicating an increasing depth of fill across the slope.

The statement of facts & contentions in the RMPAT appeal

1. The final aspect of the appellant's argument relates to the agreement reached in the appeal from the building order, resulting in the withdrawal of that appeal. It is said to be "fatal to the prosecution case that the statement of facts and contentions document was not in evidence." Nor, it should be said, was there any evidence at all of what it contained. This argument can be quickly dealt with.
2. Mr Jeffes' evidence about this was as follows:

"So do you accept that the resolution of the Appeal Tribunal proceedings did something that neither the Building Notice nor the Building Order did, which was describe the unapproved fill or the fill batter, as defined in a statement of facts and contentions?......I don't have an answer unfortunately. I'd have to refer to the statement of facts and contentions.

Do you accept that it referred to a document?.....Oh, yes, yes, I do.

And as a result, the parties agreed, the appeal was withdrawn .....correct."

A little later in the cross-examination, the following exchange occurred:

"But I'll suggest to you that by the 22nd January 2021, the fill as described in the statement of facts and contentions contained in the Appeal Tribunal file had been removed. Do you accept that?......I don't, I don't."

1. There is no rational basis to infer that anything other than what is in the statement is that which is described as the large embankment shown in the photographs Ex P 2, Ap Bk Vol pages 66 and 67. In any event, the evidence was that the agreement reached was one to extend the period of time for compliance with the building order. Whatever fill may have been identified in the Facts and Contentions had not, according to Mr Jeffes' uncontradicted evidence, been removed by the agreed date. There was no proper basis for rejecting that evidence.

1. For those reasons, the appellant has not shown that the primary judge was wrong in dismissing the motion to review and I would dismiss this appeal.