Gold Coast City Council v Lear & Anor [2016] QDC 215

[3] An enforcement notice given under this section is taken to be an enforcement notice given under the Sustainable Planning Act 2009 ("SPA").[1]

[4] Thereafter s 249 of the BA lists the specific requirements of enforcement notices. It is in the following terms:

"(1) Without limiting specific requirements an enforcement notice may impose, an enforcement notice may require a person to do any of the following -

(b) to do, or not to do, another act to ensure building work complies with the approval of the local government given before the commencement of this section;

(c) to repair or rectify the building or structure;

(d) to secure the building or structure (whether by a system of supports or in another way);

(e) to fence off the building or structure to protect persons;

(f) to cleanse, purify and disinfect the building or structure;

(g) to demolish or remove the building or structure;

(h) to comply with this Act for a particular matter.

(2) However, a person may be required to demolish or remove the building or structure only if the local government reasonably believes it is not possible and practical to take steps to comply with subsection (1)(c) to (f)."

[5] Section 250 of the BA makes provision for appeals against enforcement notices in the following terms:

"(1) A person who is given an enforcement notice under section

248 may appeal to a building and development dispute resolution committee as if the appeal were an appeal under the Planning Act.

(a) if the notice is given in relation to a dangerous building or structure - 5 business days; or

(b) if the notice is given for any other purpose - 20 business days after the enforcement notice is given to the person."

[6] Thereafter an appeal from a building and development committee to be Planning and Environment Court lies on the grounds of error or mistake in law or lack of jurisdiction.[2]

[7] Section 594 of SPA prescribes an offence carrying a maximum penalty of 1665 penalty units where a person who is given an enforcement notice fails to comply with the notice. Section 597 of SPA states that a person may bring a proceeding in a Magistrates Court on a complaint to prosecute another person for an offence under s 594.

[8] A timber sleeper retaining wall straddled the boundary between the respondents' land at 6 Mitchell Court, Carrara and the land of their neighbour at 8 Mitchell Court, Ms Nicholas. It was a timber post and rail wall that varied in height from 0.5 meters to 2.7 meters.[3] It was infested with termites and in danger of collapse. Part of the retaining wall was located on the respondents' land and part of it was located on the land of Ms Nicholas. After investigating the problem the appellant issued identical enforcement notices both dated 13 January 2014 to the respondents and to Ms Nicholas. The enforcement notice issued to the respondents ("the Enforcement Notice") was in the following terms:

" Take Notice that Gold Coast City Council ("Council") reasonably believes that a structure on the subject property is dangerous, in that the timber sleeper retaining wall located at the north-eastern boundary between 6 and 8 Mitchell Court is in a dilapidated condition, unfit for use and dangerous because:

1. The retaining wall is severely infested with vermin (termite infested); and
2. There is a high probability that if the retaining wall collapses suddenly it may cause injury to a person or damage to property.

(a) Immediately fence off the retaining wall to prevent injury to persons.

(b) Engage a Registered Professional Engineer (RPEQ) within 20 business days from the date of this notice to provide an adequate design for the retaining wall.

(c) Obtain a development approval from a private certifier for the new (replacement) retaining wall within 30 business days from the date of this notice.

(d) Engage a Registered Builder with 20 Business days after obtaining the development approval to construct the retaining wall in accordance with the development approval.

(e) Provide Council with a copy of the form 21, Final inspection certificate for the replaced retaining wall within ten business days after completion of the retaining wall.

You are required to comply with the requirements by the dates stipulated above for each requirement.

Building and Development Committees; Building Codes Queensland; Department of Infrastructure and Planning

against the giving of this notice. Any appeal must be started:

1. Within twenty (20) business days after the day this notice is given; or

2. If this notice is given in relation to a dangerous building or structure, then such appeal must be started within five (5) business days after this notice is given.

The lodging of an appeal stays the operation of this notice until;

1. the tribunal, on the application of Council, decides otherwise;
2. the appeal is withdrawn;
3. the appeal is dismissed.

1. a work and states Council believes the work is a danger to persons or a risk to public health; or
2. carrying out development that is the demolition of a work.

It is an offence against section 594(1) of the Sustainable Planning Act 2009 ("SPA") to fail to comply with this notice. Upon conviction by a court for a development offence, the maximum penalty, which can be imposed under the SPA is 1,665 penalty units (which equates with $183,150 for an individual or $915,750 for a corporation). In addition, legal costs can be claimed.

Further, in relation to a corporation, section 611 of the SPA provides that the executive officers of a corporation must ensure the corporation complies with SPA. If a corporation commits an offence against a provision of the SPA, each of the corporation's executive officers also commits an offence, namely the offence of failing to ensure the corporation complies with the provision and is subject to a penalty of 1,665 penalty units (currently $183,150).

If this notice is issued under section 248(1)(b) to (e) or (2) of the Building Act 1975 and the owner fails to perform any work required under this notice, Council may be able to enter the premises and perform the work at the expense of the owner under the Local Government Act 2009. Amounts incurred by Council become a debt owing to Council and can be recovered against the land as if it were an overdue rate.

Please note that any response to this notice may be used by Council in any legal proceedings against you, whatsoever.

[9] It became clear during the course of the evidence given at the hearing before the magistrate that neither the respondents nor their neighbour, Ms Nicholas, could unilaterally replace the retaining wall without trespassing on the property of the other party. In circumstances where there was one structure which needed replacing which was partly on the land of each of the parties, a better approach would have been to issue one enforcement notice addressed to both of them.

[10] At the conclusion of the prosecution case the magistrate was asked to rule that there was no case to answer. She noted that the appellant's approach in serving identical enforcement notices in the circumstances caused real difficulties for the appellant. She concluded that there was no case to answer in the following terms:

"Considering therefore (1) the notice refers to the whole wall or structure and not only part of structure owned by the defendants and (2) to comply with the notice, the defendants must go onto their neighbours' land to find a solution, I consider therefore that the Council cannot enforce compliance with this notice and the defendants have no case to answer."

[11] It is uncontentious that the retaining wall was a structure as defined in the BA. No issue is taken with the formal requirements of the Enforcement Notice which are mandated by s 249 of the BA. It is not contested that the retaining wall was structurally unsound and therefore dangerous.

[12] In an attempt to overcome the problems identified by the magistrate in her decision it is submitted that each of the enforcement notices should be read down as only referring to that part of the retaining wall on the property of the recipient of the notice because each is couched in terms that the appellant "reasonably believes that a structure on the subject property is dangerous". In my view this is not a sufficient answer to the defective approach identified by the magistrate in circumstances where there was no attempt to identify what part of the retaining wall was relevant to each enforcement notice and where each of the recipients was required to do exactly the same things.

[13] The Enforcement Notice directed the respondents to unlawfully carry out work on the land of their neighbour Ms Nicholas and it was therefore, as the magistrate correctly found, defective.

Was the lawfulness of the enforcement notice capable of challenge before the magistrate?

[14] The appellant also argued that the Enforcement Notice, being formally valid, could not be challenged in the proceeding before the magistrate below. It is submitted that the legislative scheme in the present case provides for the giving of an enforcement notice where the issuing authority reasonably believes that a structure is dangerous. The recipient of an enforcement notice may appeal against the enforcement notice pursuant to the BA or otherwise challenge the validity of it pursuant to the Judicial Review Act 1991 ("JRA"). Failure to comply with an enforcement notice is an offence. The elements of the offence are that a person was given an enforcement notice and that the person failed to comply with it. Accordingly the appellant submits that there is no right to challenge the lawfulness of it upon prosecution for this offence. It is uncontroversial that the respondents neither appealed against the Enforcement Notice nor instituted judicial review proceedings challenging its validity.

[15] The respondents submit that the appellant's argument impermissibly interprets the statutory law in a way which impinges upon a basic common law right, namely the right to exclude others from trespassing on land which they have no lawful right to enter. In support of this argument the respondents reply on the decision of the High Court in Coco v R[4] which, in the context of the tort of trespass, noted that authority to engage in what otherwise would be tortious conduct must be expressed in unmistakable and unambiguous language. It is submitted that this has not occurred having regard to the relevant statutory provisions referred to above and the respondents were entitled to challenge the validity of the Enforcement Notice before the magistrate.

[16] In determining whether the language of the BA and SPA expresses an intention that an enforcement notice that is formally valid on its face may not be challenged in a proceeding in the Magistrates Court upon prosecution for failing to comply with the notice, it is necessary to have regard to a series of decisions of courts both within Australia and abroad.

[17] In R v Wicks,[5] the House of Lords considered this question pursuant to the statutory regime in the Town and County Planning Act 1990 in circumstances where the local planning authority had issued an enforcement notice to the owner of an allegedly unlawfully constructed building. The leading judgement of the House of Lords was written by Lord Hoffmann. Relevantly he observed:

"The enforcement notice had been properly served and was, as I have said, formally valid. There was no dispute that he had failed to comply. He could not reopen the questions which had been decided against him by the inspector, because section 285(1) says:

'Subject to the provisions of this section, the validity of an enforcement notice shall not, except by way of an appeal under Part VII, be questioned in any proceedings whatsoever on any of the grounds on which such an appeal may be brought'."[6]

"The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statue may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case, the justices will have to rule upon the validity of the act. On the other hand, the statue may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices."[7]

[19] Lord Hoffmann analysed the context of an enforcement notice within the relevant legislative framework in the following terms:

"The history shows that over the years there has been a consistent policy of progressively restricting the kind of issues which a person served with an enforcement notice can raise when he is prosecuted for failing to comply. The reasons for this policy of restriction are clear: they relate, first, to the unsuitability of the subject matter for decision by the criminal court; secondly, to the need for validity of the notice to be conclusively determined quickly enough to enable planning control to be effective and to allow the timetable for service of such notices in the Act to be operated; and thirdly, to the fact that the criminal proceedings are part of the mechanism for securing the enforcement of planning control in the public interest."[8]

[20] Lord Hoffman ultimately concluded that there were sufficient avenues to challenge an enforcement notice by way of a statutory appeal and in juridical review proceedings and found that there was no opportunity to challenge the lawfulness of an enforcement notice upon a prosecution for failure to comply with it. He stated:

"I do not think that in practice hardship will be caused by requiring the residual grounds to be raised in judicial review proceedings. The statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice. The residual grounds will in practice be needed only for the rare case in which enforcement is objectively justifiable but the decision that service of the notice is... vitiated by some impropriety.

All these reasons lead me to conclude that "enforcement notice" in section 179(1) means a notice issued by a planning authority which on its face complies with the requirements of the Act and has not been quashed on appeal or by judicial review. There was no dispute that Mr. Wicks had failed to comply with such an enforcement notice and he was therefore guilty of the offence."[9]

[21] The effect of Wicks was considered in an Australian context in Gray v Woollahra Municipal Council[10] by Whealy J in the context of an order from the respondent council requiring the appellant to demolish and remove a barbed wire fence. The appellant failed to comply with the order and did not exercise her right to appeal against the order to the Land and Environment Court. The appellant was then issued with a penalty notice and prosecuted in the local court. The question for consideration by Whealy J was whether the applicant could challenge the validity of the council order in the local court. In considering Wicks his Honour noted the significance of the privative clause in s 285(1) of the Town and County Planning Act 1990 quoted in the judgement of Lord Hoffmann above[11]. In the absence of such a privative clause, Whealy J ultimately concluded that the entitlement to challenge the validity of the council order in the prosecution proceeding in the local court had not been taken away by the legislative framework pursuant to the Environment Planning and Assessment Act 1979 (NSW):

"There is no doubt that there is a very clear statutory intention, indeed an express intention, that matters arising under s 121B orders are to be scrutinised, if there is to be an appeal, by the Land and Environment Court. But the real question is - was it intended that those issues be determined only by that Court?

It will be plain from what I have said that there are arguments both for and against the present plaintiff having a right to challenge the validity of the council order by way of defence in the local court. In the end, I have come to the conclusion that the entitlement to do so has not been taken away by the terms of the EPA Act. There are two essential reasons why I think this is so.

First, unlike the legislation discussed in Wicks, there is no statutory restriction on the ability to challenge the council order in proceedings arising otherwise than in the appeal contemplated by s 121N and provided for in s 121ZK. This, in my view, is a significant distinction between the situation discussed in Wicks and the present matter. If the legislature had wished to oust the ability of the local court to deal with such a defence, it would have been a simple matter to have included it in the legislation.

Secondly, it seems to me that only the clearest language in a statute should be held to have taken away the right of a defendant in criminal proceedings to challenge the lawfulness of an administrative decision made against him where the prosecution is premised on its validity."[12]

[22] The decision in Gray was followed by Robertson DCJ in Howe & Anor v Harris[13]in determining an appeal arising from the successful prosecution of a breach of an enforcement notice in the Magistrates Court at Caboolture. The enforcement notice was issued by the Caboolture Shire Council in respect of allegedly unlawful building work in the context of a statutory regime pursuant to the Integrated Planning Act 1997 which preceded the current statutory regime under consideration by me and which was essentially the same. Robertson DCJ placed particular significance on the absence of a privative clause in allowing the appeal. It is noteworthy that there is also no privative clause under the current legislative regime.

[23] Most recently the application of the decision in Wicks was considered by the Full Court of the Supreme Court of Tasmania in Krulow v Glamorgan Spring Bay Council[14] in the context of the legislative regime which applied pursuant to the Land Use Planning and Approvals Act 1993 (Tas). Relevantly the question which arose for determination by the Full Court was whether the appellants were permitted to challenge the validity of orders of the Resource Management Planning Appeal Tribunal when prosecuted for contravention of them. The leading judgement was given by Estcourt J. The appellants submitted that there was no express provision in any of the relevant legislation which made valid and binding a jurisdictionally flawed decision of the Tribunal and that such a decision must be invalid. In response his Honour stated:

"In my view the necessary implication stems firstly, from the fact that the Tribunal's orders made under s 64 of the LUPA Act are open to appeal to this Court under s 65 of the Act, and secondly, from the fact that the legislation gives the Tribunal no power to enforce its own orders made under s 64, but rather, requires enforcement to be by way of summary prosecution. The result of that seems to me, sensibly to be, that the text, context and purpose of the Act allow that a person may exercise the right to appeal against an order directed to him or her, but require that in the event of failing to do so the order is to be presumed valid for enforcement purposes.

Such a result does not give rise to any unfairness, as even in the event that a time limited appeal against an invalid order under the LUPA Act was not possible under s 65 of the Act, or was precluded by the passage of time, declaratory relief, or relief in the nature of certiorari, would still be available to a person aggrieved by the order, at least in the case of jurisdictional error, if not for error within jurisdiction. Given those avenues, and the scheme of s 64 and s 65 of the Act, I see no room to allow for another "mechanism for scrutiny" as suggested by senior counsel for the appellants in his written reply submissions. That phrase was employed by counsel with reference to the "real question" posed by Whealy J in Gray v Woollahra Municipal Council (supra) at [108], namely, whether it was intended that issues of validity be only determined on an appeal to the Land and Environment Court and not on a prosecution before a magistrate. The answer to that question in the case of the LUPA Act, in my opinion, is "yes"."[15]

[24] Finally, in Conquest & Anor v Bundaberg Regional Council[16] the precise question before me was raised before the Court of Appeal, however the Court of Appeal declined to determine the issue in the following terms:

"I would add that the respondent argued that it was not open to the applicants in the prosecution proceedings to mount a collateral challenge to the validity of the enforcement notice. The respondent argued that the provisions in the legislative scheme which entitle the recipient of an enforcement notice to challenge its legality before being charged with an offence justify the conclusion that the words "enforcement notice" in s 4.3.15(1) mean only "an enforcement notice which is formally valid and had not been quashed". The applicant [sic] submitted that those provisions did not reveal a legislative intention to that effect.

Since the applicants did not in the Magistrates Court or the District Court seek to mount a collateral challenge to the validity of the enforcement notice upon the grounds they now seek to raise in the present application it is not appropriate to adjudicate upon that point."[17]

[25] In my view the correct approach is that adopted by Lord Hoffmann in Wicks and applied by Estcourt J in Krulow. The observations of Lord Hoffmann quoted above at para [19] are apposite. The Enforcement Notice was comprehensive and valid on its face. In circumstances where the appellant reasonably believed the retaining wall was dangerous it is entirely appropriate that a challenge to the Enforcement Notice be started promptly by an appeal to the Building and Development Committee within the five business day period which applied. It is appropriate that a challenge to an enforcement notice take place in such a context given the technical nature of the surrounding issues. An appeal to the Planning and Environment Court lies from such a decision. An enforcement notice issued for an improper purpose could also be challenged pursuant to the JRA. As noted by Lord Hoffmann, criminal proceedings for failing to comply with an enforcement notice are part of the mechanism for securing the enforcement of planning controls in the public interest. It is not in the public interest that the recipient of an enforcement notice be permitted to do nothing in response to it and challenge its validity much later, when the offence of failing to comply with the enforcement notice finally becomes before the Magistrates Court. The legislative regime provides more than ample redress to the recipient of an enforcement notice who wishes to challenge it. The legislature has prescribed the only challenges available in unambiguous terms without recourse to a privative clause. I therefore conclude that the lawfulness of the Enforcement Notice was not capable of being challenged before the magistrate.

[26] Whilst the Enforcement Notice was not lawful, it was valid on its face and in circumstances where the respondents did not challenge it by way of an appeal pursuant to s 250 of the BA, or by way of proceedings pursuant to the JRA, there was no jurisdiction to challenge it before the magistrate.

[27] I allow the appeal and remit the matter to the magistrate for determination according to law.

[4] [1994] HCA 15; (1994) 179 CLR 427.

[5] [1997] UKHL 21; [1998] AC 92.

[10] [2004] NSWSC 112.

[13] Unreported District Court Maroochydore 13 May 2005.

[14] [2013] TASFC 11; (2013) 23 Tas R 264.

[16] [2016] QCA 203.

[17] Ibid at [42] to [43] per Fraser JA.