Sunshine Coast Regional Council v McArthur [2025] QPEC 30

• [3] The Action Notice required the respondent (being, the identified plumber or licensee who had been engaged to undertake notifiable works) to give the Council and the owner of the premises, a Form 9 for the removal of the removed device, upon the following basis;

"Sunshine Cost[sic] Council (Council) conducted an audit on notifiable works carried out at the above-mentioned property.

The audit identified the removal of a previously registered backflow prevention device (serial number 2706493) which was replaced by the installation of a new backflow prevention device (serial number 10834485-03).

The Plumbing and Drainage Regulation 2019 (PDR) s 103 prescribes two types of relevant work;

• installing a testable backflow prevention device at a premises (whether for the first time or to replace a previously installed device); and
• removing a testable backflow prevention device from a premises.

It requires the licensee to give notice of the relevant work in the approved form (Form 9) to the local government and the owner of the premises within 10 business days after carrying out the relevant work."[1]

• [4] The respondent commenced an appeal against the appellant's decision to give the Action Notice, on 18 February 2024, and the Development Tribunal made a decision, on 10 April 2025, to allow the appeal and effectively set aside the Action Notice.
• [5] The contentions stated in the grounds in the notice of appeal to this Court, include that:

"The Development Tribunal, in making its decision, erred in law by:

1. failing to correctly interpret and apply the Plumbing and Drainage Regulation 2019 (Qld) (P&D Regulation) and associated legislation resulting in the Tribunal:
   1. finding that only one Form 9 was required for the installed device and removed device;
   2. finding that the submitted Form 9 complied with s 103 of P&D Regulation;
   3. finding that the removal of the removed device was not a removal pursuant to s 103(1)(b) of the P&D Regulation.
2. failing to correctly interpret and apply the Acts Interpretation Act 1954 (Qld) resulting in the Tribunal finding that the respondent provided a compliant Form 9."[2]

It is further contended that the correction of those errors would lead to a different outcome in the appeal.

• [6] It is to be noted that it has never been in issue that on 30 January 2025, the respondent, as a licensee under the Plumbing and Drainage Act 2018 ("PDA"), completed "notifiable work", within the meaning of s 5 and Schedule 1, Part 2, Item 7 of the PDA, in that it was, broadly, for the replacement of a testable backflow prevention device, or at least the installation of such a replacement device, to an existing building. The issue is entirely concerned with the adequacy of the notification given of the performance of that work, having regard to the statutory requirements as to such notification.

• [7] The appeal to this Court is brought pursuant to s 229 and Schedule 1, section 1(4), table 2, item 1 of the Planning Act 2016 ("PA"), which relevantly provides that:

"An appeal may be made against a decision of a tribunal, other than a decision under s 252, on the ground of-

(a) an error or mistake in law on the part of the tribunal; or

(b) jurisdictional error."

It may be further noted that pursuant to s 45(1)(d) of the Planning and Environment Court Act 2016 ("PECA"), the appellant bears the onus of establishing that the appeal should be upheld, thereby engaging any power available pursuant to s 47 of the PECA, for instance, to change the Tribunal's decision or to set it aside and either make a decision replacing it or to return the matter to the Tribunal.

• [8] As has been noted, the appeal is brought only in respect of the assertion of the ground of an error or mistake in law on the part of the Tribunal. The primary contention is as to misinterpretation and misapplication of s 103 of the Plumbing and Drainage Regulation 2019 ("PDR"), which provides as follows:

**"**103 Testable backflow prevention device - obligation of licensee

(1) This section applies if a licensee carries out the following work (the relevant work) -

(a) installing a testable backflow prevention device at premises, whether for the first time or to replace a device previously installed;

(b) removing a testable backflow prevention device from premises.

(2) This section also applies if the owner of premises where a testable backflow prevention device is installed arranges for a backflow prevention licensee to maintain and test the device (also the relevant work), whether to comply with section 102(4) or an enforcement notice.

(3) The licensee must, within 10 business days after carrying out the relevant work, give notice of the relevant work in the approved form to -

• [9] More particularly, it is submitted that the Tribunal erred in determining that s 103(1)(b) of the PDR did not apply where an existing device was replaced by a new device. Particular attention is drawn to the following part of the Tribunal's reasoning:

"53. The ordinary definition of replace suggests the substitution of one thing (or item) for another, with an emphasis on continuity, that is, the introduction of a new item that serves a similar function or ongoing capability.

1. The ordinary definition of remove has a different meaning and suggests the taking away of a thing with some permanency, without necessarily providing a substitute (replacement). It is a single action which is focused on the elimination or reduction of an item, with no ongoing capability.
2. In applying the ordinary dictionary meaning of the word replace for the purposes of s 103(1)(a) of the PDR, the Tribunal considers that the legislators intended 103(1)(a) of the PDR be applied to circumstances where an existing testable backflow prevention device was being replaced or exchanged, such that an ongoing capability remained.
3. In applying the ordinary dictionary meaning of the word remove for the purposes of s 103(1)(b) of the PDR, the Tribunal considers that the legislators intended 103(1)(b) of the PDR be applied in circumstances of finality, that is, where there has been a permanent removal of a testable backflow prevention device with no ongoing capability (device) in place to protect water supplies from contamination or pollution due to backflow."

• [10] As to the contended misinterpretation of s 103 of the PDR, the appellant submits that the words "whether for the first time or to replace a device previously installed" as they appear in s 103(1)(a) are:

(a) first, words which have the effect of expanding and clarifying the terms of s 103(1)(a) of the PDR; and

(b) secondly, words which do not have the effect of narrowing (or limiting) the terms of s 103(1)(b) of the PDR.

The contention is that on a proper construction, two separate notices were required, respectively for each of the aspects of relevant work performed and that the notice provided in the singular form pursuant to s 103(3) of the PDR was not compliant.

• [11] It is then convenient to place the particular passages noted from the Tribunal decision into some broader context, in those reasons;

(a) Before expressing its interpretation of the critical terms of s 103 of the PDR, the Tribunal posed the issues for its determination as follows:

"44. The fundamental issue which remains in dispute, and the question which requires resolution in this appeal, is whether there are any legal consequences for the Appellant under s 103 of the PDR, in relation to his not providing a Form 9 to the Respondent and the owner of the premises following the removal of the Wilkins device.

1. This question can only resolved through the proper statutory interpretation of s 103 of the PDR, and in particular, whether the installation and replacement of a testable backflow prevention device under s 103(1)(a) of the PDR is considered a distinct or different activity to the removal of a testable backflow prevention device under s 103(1)(b) of the PDR.

(b) Subsequently to the paragraphs which have been noted as the particular focus of the appellant's contentions, in the Tribunal's reasons it was relevantly concluded that:

"57. The Tribunal considers that the requirement for a licensee to issue a Form 9 under s 103(1)(b) of the PDR applies in circumstances where a testable backflow prevention device is permanently removed from a property and where no ongoing capability is left in place to protect the water supply from contamination due to backflow.

1. The Appellant installed the new Valvcheq device. This was a replacement of the existing Wilkins device and was not undertaken in the context of the permanent removal of capability to protect the water supplies from contamination or pollution due to backflow.
2. The Appellant provided a Form 9 to the Respondent and the owner of the premises in relation to the installation of the Valvcheq device and replacement of the Wilkins device as required under s 103(1)(a) of the PDR. The Appellant complied with his statutory responsibilities under s 103(1)(a) of the PDR and therefore, the notifiable work was compliant.
3. There was no requirement under s 103(1)(b) of the PDR for the Appellant to give a further (separate) Form 9 to the Respondent and the owner of the premises relating specifically to the replacement of the Wikins device, as it was not a removal of the device for the purposes of s 103(1)(b) of the PDR."

• [12] It may then be noted that the decision of the Tribunal was expressed to be given pursuant to s 254(2)(c) of the PA, as being to replace the decision of the Council to issue the Action Notice, with the decision:

"That the failure of the [respondent] to provide a Form 9 to the [appellant] and the owner of the premises in relation to the removal/replacement of backflow prevention device (serial number 2706493) constituted non-code compliant notifiable work, with a decision that the notifiable work is code compliant."

• [13] That appeal was brought to the Tribunal pursuant to s 229(1)(a)(ii), Schedule 1, section (5), Table 3, item 3(b) of the PA; in the sense that it was an appeal against the appellant's decision to issue an Action Notice, pursuant to s 96 of the PDR, for non-compliant notifiable work.[3] The particular action which was required by the Action Notice, dated 18 February 2025, was for the respondent to "[g]ive the Council and the owner of the premises a Form 9 for the removal of the backflow prevention device (serial number 2706493)", in the context of the following expressly stated "facts and circumstances":

"Two types of relevant work (as defined under Section 103 of the Plumbing and Drainage Regulation) were performed under the Notifiable work - Form 4 submitted by yourself at the subject property.

Council's records indicate a Form 9 was received for the installation/registration of the new backflow prevention device (Serial number 10834485-03), however, Council has not received a Form 9 for the removed backflow prevention device (serial number 2706493).

A Council plumbing inspector concluded an inspection of the relevant work 14 February 2025 and the inspector is not satisfied section 103 of the PDR has been complied with."

• [14] There has been no issue raised as to any such non-compliance with s 103 of the PDR, being amenable to such an Action Notice. As has been noted, the effect of the tribunal decision was to obviate any need for compliance with the Action Notice (non-compliance being an offence punishable be a monetary penalty: s 98(2) of the PDR) and the issue is whether that decision was in error, as being dependent upon an erroneous interpretation of the requirements of s 103 of the PDR. Neither is it put in issue that any such error, if established, is a mistake in law.

• [15] It is convenient to first note that the respondent opposes the interpretation of s 103 contended by the appellant and particularly seeks to maintain the Tribunal's interpretation of that provision. Before turning to that, there is also a contention, raised for the first time, that the removed device is not a "testable" backflow prevention device, because of contentions which were not raised before the Tribunal and are not supported by any evidence before the Court, that it was "leaking and beyond repair".[4]
• [16] The specific provision of the PA in limiting this appeal to the grounds of error or mistake in law or jurisdictional error, appear to exclude the more general application of s 43 of the PECA. Neither is it necessary to determine whether the respondent might be permitted to resort to any additional evidence, to inform, for instance, any decision as to what power to exercise pursuant to s 47 of the PECA, if any such error is identified in the Tribunal decision. Although the respondent did seek to rely upon additional material not considered by the Tribunal, none of it is of any identifiable assistance in the determination of this matter:

(a) In respect of the reliance upon an assertion recorded in Hansard for 14 February 2018, by the Minister introducing the Plumbing and Drainage Bill 2018 that the "Bill will deliver a streamlined and contemporary regulatory framework that reduces red tape", this cannot lead to a contrary conclusion to what is, as explained below, to be discerned as an unambiguous requirement of the regulation promulgated to achieve such a stated objective.

(b) Reliance upon any indication as to what may constitute removal, as distinct from replacement, of an item in the Queensland Building and Construction Commission's notifiable works tools cannot inform the interpretation of the statutory provisions to which such a tool may relate, let alone the separate and different statutory provisions which provide the for the obligations as to notification to the appellant.

(c) Similarly, a sample Form 9, as provided on the appellant's website, cannot be regarded as relevant extrinsic material or providing any assistance as to the determination of the legislative intent of the relevant provisions of the regulation. In any event, the reference sought to be made to the explanation as to what may be included as comments in section 10 of the form, as "information necessary to assist council" including reference to and identification of a "removed old device" and "installed new device", is not necessarily inconsistent with being suggested cross referencing of what the appellant contends should necessarily be separate notification forms for each device.

• [17] In any event, as contended for the appellant, the underlying legal proposition for the respondent's additional contention, is misconceived. The obligations arising under s 103 of the PDR relate to "a testable backflow prevention device". That term is specifically defined in Schedule 10 of the PDR, as follows:

"testable backflow prevention device means any of the following prevention devices -

The PDR is authorised pursuant to 157 of the PDA and the following definition appears in Schedule 1 of the PDA:

"backflow prevention device means a device to prevent the flow of water from a potentially polluted source into a water supply system for drinking water."

It is not understood to be in contest that the device replaced here was, in each respect, a double check valve device.[5] Moreover, the Form 9 which was submitted by the respondent in respect of the replacement work undertaken, was expressed to relate to a double check valve, with two types of test noted in the form, being: "Installation/Registration test" and "Decommissioning and Removal". Further and as is also evident from the notations appearing on that form, each such device is identifiable not just by make and model but also by a particular serial number.

• [18] Accordingly, it may be seen that the particular focus is upon the nature or type of device and not upon what particular testing may be able to be carried out at any particular point in time. Also, reference to the form submitted here, by the respondent, exemplifies that it is not just concerned with testing as to the adequacy of such a device, in that it specifically allows, in Item 5(a), for the reporting of leaking valves as a test result.
• [19] This contextual understanding of the separate nature of each testable backflow prevention device, as such devices may be the subject of an activity in replacing one for another, also informs the interpretation of s 103 of the PDR.
• [20] Recently, in[ ]Hays Specialist Recruitment (Australia) Pty Ltd v Carey-Schofield; Civeo Pty Ltd v Carey-Schofield,66 [2025] QCA 161, [264]-[265] (with citations omitted). the process of statutory construction was summarised as follows:

[264] Statutory construction involves the attribution of legal meaning to statutory text. Its process is well understood. However, it assists to restate some general principles:

1. The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. The constructional task is to expound the meaning of the statutory text, not to divine unexpressed legislative intention or to remedy perceived legislative inattention. Construction is not speculation and it is not repair.
2. The task of statutory construction must begin with a consideration of the text itself. So must the task of statutory construction end.
3. The statutory text must be considered in its context. Context should be regarded at the first stage, not at some later stage, and should be regarded in its widest sense.
4. The context and purpose of a provision are important to its proper construction because the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
5. The interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation: Acts Interpretation Act 1954 (Qld) s 14A.
6. The purpose of a statute resides in its text and structure. Purpose must be derived from what the legislation says and not from any assumption about the desired or desirable reach or operation of the relevant provisions. In considering purpose it is necessary to identify the purpose of the specific provision rather than the purpose of the enactment as a whole.
7. Inconvenience or improbability of result may assist the court in preferring a construction other than a literal interpretation which is reasonably open and more closely conforms to the legislative intent.
8. A court construing a statutory provision must strive to give meaning to every word of the provision.

[265] Accordingly, the key elements in determining the proper construction of a written law are the statutory text, context and purpose. The text is the starting and end point. It provides the 'surest guide' to Parliament's intent: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue. However, the text must be read in its context, including the general purpose and policy of the statutory provision.

• [21] Some relevant legislative context for s 103 of the PDR, is found in the PDA:

(a) s 3 of the PDA, states the main purpose of the Act as:

(1) The main purpose of this Act is to regulate the carrying out of plumbing or drainage work in a way that reduces risks to -

(2) The main purpose of this Act is to be achieved primarily by -

(a) establishing a licensing scheme to ensure all plumbing or drainage work, other than unregulated work, is carried out by persons who are qualified to carry out the work; and

(b) requiring plumbing or drainage work to be carried out in compliance with the code requirements for the work; and

(c) establishing a framework for approving particular plumbing or drainage work and particular treatment plants.

(b) By s 6 of the PDA, "plumbing and drainage work" is defined to consist, in part, of "notifiable work", which is defined, in s 6(3), as "plumbing or drainage work prescribed by regulation as notifiable work."; and

(c) Relevantly, the regulation making power in s 157, allows for the Governor in Council to may make regulations which may:

(d) provide for matters relating to plumbing or drainage work; or

(f) provide for the inspection of permit work and notifiable work and the giving of action notices, inspection certificates or final inspection certificates for the work; or

(g) provide for administrative matters, including the requirement for a person to give a notice to an entity, in relation to plumbing or drainage work; or

(h) require the maintenance, testing and inspection of particular plumbing or drainage work; or

(n) provide for the registers the commissioner or a local government must keep and the information that must or may be included in each register."

• [22] In that broader context, it is to be then noted that, in the PDR:

(a) the following definition of "notifiable work" is contained in s 5:

"(1) For section 6(3) of the Act, notifiable work is plumbing or drainage work of the type stated in schedule 1, part 2."

And that the following is relevantly included in schedule 1, part 2:

work necessary for installing, replacing or removing a testable backflow prevention device or a dual check valve with atmospheric port, if the work is for -

• an existing building; or
• an extension to an existing class 1 building; or
• a structure for an existing class 1 building";

(b) Section 103 is situated within Part 7, which is headed: "Installation, maintenance and related matters" and which also includes the following provisions:

101 Testable backflow prevention device - obligation of local government

(a) registering each testable backflow prevention device installed at premises in its local government area; and

(b) monitoring the maintenance and testing of each device.

1. Testable backflow prevention device - obligations of owner of premises

(1) This section applies if a testable backflow prevention device is installed at premises in a local government area, whether the device is installed for the first time or to replace a device already at the premises.

(2) The owner of the premises must register the testable backflow prevention device, by giving notice, in the approved form, to the local government.

(3) However, the owner of the premises need not comply with subsection (2) if -

(a) the device has already been registered under subsection (2) after being installed under subsection (1); or

(b) a licensee has installed the device under section 103(1)(a) and given the local government notice of the installation as mentioned in section 103(3); or

(c) a backflow prevention licensee has maintained and tested the device and given the local government notice of the maintenance and testing as mentioned in section 103(3).

(4) The owner of the premises must also arrange for a backflow prevention licensee to maintain and test the device at least once each year after the device is registered.

(c) in Part 8, Division 2, which is headed: "Registers kept by local governments", it is then provided that:

"113 Register of testable backflow prevention devices

(1) A local government must keep a register containing each notice given to the local government under section 102(2) or 103(3).

(2) The local government must keep a notice mentioned in subsection (1) in the register until the premises to which the notice relates are demolished or removed."

• [23] In the context of the broader objectives of the PDA, it is to be discerned that an underlying purpose of s 103 of the PDR is the facilitation of the obligations of the appellant in respect of the establishment of a program for registering and monitoring the maintenance and testing of each testable backflow prevention device installed at relevant premises in its local government area and maintenance of a register in respect of such backflow prevention devices. That is achieved by placing particular and differing notification obligations, on different persons, in respect of their association to such devices.
• [24] For instance and pursuant to s 102 of the PDR, the obligations of an owner of any premises where such a device is installed, are focussed upon the installation and maintenance, by testing of such devices, except to the extent that consequential notification obligations have been performed by someone else, including by a licensee pursuant to s 103.
• [25] Whilst it may be noted that by s 5 and item 7 in Part 2 of Schedule 1 of the PDR, there is reference to notifiable work, in the alternative, as: "work necessary for installing, replacing or removing a testable backflow prevention device", that is for the purposes of limiting the application of those alternatives to certain categories of building and distinguishing the concept of notifiable work from the other categories of plumbing and drainage work, as specified in s 6(1) of the PDA. The concept of "notifiable work" is specifically picked up in Division 6 of Part 3 of the PDA, which prescribes obligations in respect of such work in respect of notification to the commissioner under the Queensland Building and Construction Commission Act 1991.
• [26] However, neither s 102 nor s 103 of the PDR is specifically couched in reference to any concept of notifiable works. Accordingly, there is nothing to be gained by any examination, as found its way into the submissions for the respondent, of the separately prescribed requirements of notification to the QBCC.
• [27] Rather, in respect of s 103 and as is a central plank of the appellant's contentions, the application of the section is directed at the notification obligations of a licensee who has carried out "relevant work" in respect of any particular testable backflow prevention device. In that section "relevant work" is defined in three respects, only two of which are related to satisfying the obligations of an owner of a relevant building under s 102, that is, in respect of the installation and at least yearly maintenance and testing of any such installed device. The third respect is the work of removing such a device from premises.
• [28] Once, as is the appellant's contention, it is understood that such work is necessarily performed in respect of individually identifiable devices, the fallacy in the reasoning of the Tribunal is evident. It is unnecessary to dwell upon the more nuanced contentions in the submissions of the parties as to reliance upon particular aspects of the punctuation of s 103, as both the structure and wording of subsection (1), is tolerably clear in only distinguishing between two aspects of relevant work, being, respectively, the installation and removal of any such device, with the reference to replacement, in subsection (1)(a), serving only to qualify or clarify the work in respect of installing a device, so as to make it clear that the notification obligation attaches to any installation of such a device, "whether for the first time or to replace a device previously installed". In this sense, the word "replace" in s 103(1)(a), has meaning and is neither to be regarded as redundant nor superfluous.[7]
• [29] Accordingly, the approach of the Tribunal in seeking to ascribe meaning to a concept of replacement in distinction to removal of a device, was misconceived and involves an inappropriately narrow interpretation of the concept of removal of a device, in s 103(1)(b). As further correctly contended for the appellant, the dictionary definition relied upon is equally applicable, because a device which is removed to be replaced by another device is just as much permanently removed as one which is removed and not replaced.
• [30] The appellant has, therefore, established error in the construction or interpretation of s 103 of the PDR and therefore an error of law in the tribunal decision.

• [31] However, that conclusion does not necessarily determine an outcome of this appeal. As noted above,[8] the decision of the Tribunal which is the subject of this appeal involved determination that there was no obligation for the respondent to give separate notification as to the removal of any device under s 103(1)(b) and that there was therefore compliant notification of the replacement of the devices under s 103(1)(a).
• [32] However, the application of s 103(3) of the PRD was not expressly addressed in the Tribunal Decision, as it has been in the submissions of the appellant in this appeal. Notwithstanding that there has been little direct engagement in respect of this further issue in the respondent's submissions, it is necessary to consider the appellant's contentions, as they necessarily serve to inform the consequences of the error of law which has been identified in the interpretation of s 103(1) of the PRD and what relief may be afforded, bearing in mind that the Tribunal Decision was directed at the appellant's decision to issue the Action Notice.
• [33] Further and whilst there may be a previously unconsidered question of fact which is ultimately in issue, as will be further explained, there is also a question of law as to the construction of the approved form to and its capacity carry the consequences contended for the appellant.
• [34] Accordingly, the essential question which remains is as to whether, in light of the appropriate interpretation or construction of what constitutes relevant work pursuant to s 103 of the PDR, the respondent has not given, pursuant to s 103(3) "notice of the relevant work in the approved form". In particular, the ultimate question may be as to whether there has been substantial compliance with that the notification requirement in respect of the removal of the previously installed device, by ticking, in section 3 of the form provided, the words "Decommissioning and Removal", in addition to "Installation/Registration test" and recording, in section 10 of that form, the notation:

"Comments removed valve Wilkins DCV 250 SN - 2706493 25mm".

• [35] It is not in issue that the form adopted by the respondent is the approved form for the purpose of compliance with s 103(3) of the PDR. However and notwithstanding that an effect of these specific notations in the completed form may be to indicate that the otherwise identified installation of the ValvCheq device, was to replace the identified Wilkins device and that the removal of the Wilkins device is expressly noted, the applicant's contention is that this is not and cannot be, pursuant to s 103(3), notification of that removal "in the approved form". That proposition requires reference to s 48A of the Acts Interpretation Act 1954, which relevantly provides:

(1) If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient.

(2) If a form prescribed or approved under an Act requires -

(a) the form to be completed in a specified way; or

(b) specified information or documents to be included in, attached to or given with the form; or

(c) the form, or information or documents included in, attached to or given with the form, to be verified in a specified way;

the form is not properly completed unless the requirement is complied with.

(a) a form (form 1) may be prescribed or approved under an Act for a purpose or 2 or more purposes; and

(b) another form (form 2) may be prescribed or approved under the Act or another Act for the same or another purpose or purposes;

then, if separate forms 1 and 2 are prescribed or approved, a combined form 1 and 2 may be prescribed or approved and used for the purpose or all the purposes."

• [36] Effectively, the contention for the appellant is that the construction of the form, in the context of the instruction in the preamble that: "Completion of all applicable sections is mandatory", is such as to require it to be completed in a specified way or to include specified information, so as to require a separate and discrete form in respect of the relevant work performed on an individual device, thereby precluding any scope for consideration of substantial compliance pursuant to s 48A(1).
• [37] The primary contention is that the form "provides for the identification of only one device".[9] Leaving aside one aspect of it, there are a number of considerations which are supportive of such a conclusion. Whilst each of sections 3 and 5, permit of the identification of various types of devices, the requirement is as to specific identification of a particular device and additionally as to the type of test and test details for that device. Notably and apart from the comment added by the respondent in section 10, there is only the apparently conflicting checking of the alternatives "Installation/Registration test" and "Decommissioning and Removal" in section 3, under the heading: "Type of test" and where in response to the instruction to "please nominate the appropriate device type" and under the heading: "Type of device" the solitary indication is: "Double check valve (Appendix F)". Further indicia of the necessity to identify a singular device follows from the requirements of sections 4 and 7, as to the location, mains pressure and time of test, and identification of the test kit used.
• [38] However, it may also be observed, in respect of any device which may be identified in sections 3 and 5 or 6, that alternatively specified information is to be included. The effect, consistently with s 48A(3), is that the form does permit of some combination of purposes of notification of relevant work, at least in respect of a singularly identified device. As is not in issue in this matter, the form provided combined notification satisfying both the obligations of the licensee and the owner in respect of the installation and testing of an installed device. It may also be observed that on the thesis advanced for the appellant, any separate form provided in respect of notification of the removal of a defective device might also serve the combined purpose of notification as to at least annual testing of the previously installed device.
• [39] It may be further observed that, conceivably, the form may have been constructed to explicitly provide for combined notification of all of the related aspects of relevant work involved in the replacement of a testable backflow prevention device at relevant premises. Neither, it may be observed, is it expressly specified that the form is to be completed in respect of a singular device; rather the appellant's contention as to such requirement is as an implication arising from the structure of the form, as has been noted.
• [40] However, return to the aspect of the form earlier noted to be put aside, presents a particular difficulty for the conclusion of any such implication, in that section 10, in the context of the declaration required in section 11, provides for the "Authorised tester's results" in the following terms:

"I have tested the device/s marked in this form in accordance with the relevant appendix of AS/NZS 2845.3:2020".

Although it may be difficult to envisage how a situation might arise where the testing of multiple devices at the same location might be the subject of identification in a single Form 9 and notwithstanding the further complication of only a singularly available indication of "pass" or "fail", this necessarily remains as an express contradiction of the implication pressed for the appellant.

• [41] Therefore and as matter of construction of the approved form, it cannot be concluded that the form requires completion in respect of a singularly identified device, so as to preclude any conclusion that there has been substantial compliance with the respondent's obligation to notify the removal of the previously installed device in the approved form.
• [42] Further and to the extent that there are additional contentions as to the absence of any notification of any result of testing of the removed device or perhaps identification of the defect or reason for removal, the only potentially relevant specifications in the approved form are in section 5, allowing for indications as to leaking valves and in section 10, where the option of "Fail" may be selected. But as already noted, the form is clearly amenable to use for the singular purpose of notification as to relevant work in the nature of at least annual testing of a registered device and the specific instruction in section 5 is:

"record relevant test details as appropriate (leave any non-relevant fields blank".

Leaving aside the separate consideration as to any compliance with notification concerning any such testing obligation, which was not the subject of the Action Notice in issue here, on the hearing of this appeal, there is no identification of any requirement for notification of any specific testing of a registered device prior to the removal of it. [10] Moreover, it does not even follow that there must necessarily be an identifiable defect in a registered device before it may be removed and replaced, for instance as a precautionary measure as against the prospect of urgent attention to sudden future failure of an aging device. Accordingly, these considerations further tell against a construction of the approved form requiring any specified information apart from the identification of the registered device which has been removed.

• [43] Although upon that construction, that leaves a question of fact, being whether there was an appropriate basis for a conclusion that there had not been substantial compliance with the notification obligation of the respondent in respect of the relevant work performed by the removal of the device, it is a question which involves an evaluative assessment of the contents of the form which was provided in purported compliance with that obligation. It was not understood that any contention was raised against this Court now determining any such residual issue and as has been noted, issues as to the construction of the form and the potential application of the s 48A were identified in the written submissions of the appellant.
• [44] In any event and upon the construction of form which has been noted, there is only one reasonable conclusion, in that there has been at least substantial compliance with the obligation to notify the removal of the previously installed and registered device. This is because that obligation cannot be determined to extend beyond a requirement of bare notification of that fact and it was expressly notified on the submitted form.

• [45] It therefore follows that there was no appropriate basis for any lack of satisfaction as to substantial and sufficient compliance with s 103 of the PDR, as the necessary basis of the decision to give the Action Notice. Accordingly and albeit for the reasons expressed above and notwithstanding the identified error of law in the Tribunal's construction of s 103 of the PDR, the appropriate order will be to confirm the effect of the decision of the Development Tribunal dated 10 April 2025 to change the decision as to the underlying basis for issuance of the Action Notice.
• [46] Subject to the parties having an opportunity to be heard in respect of the formulation of it, and to appropriately reflect the reasoning of this Court, that may be achieved by an order that:

The decision of the Development Tribunal dated 10 April 2025 is changed to be that:

The Development Tribunal, in accordance with s 254(2) of the Planning Act 2016, replaces the decision of the Respondent to issue the Action Notice dated 18 February 2025, with a decision that there is satisfaction that there has been substantial and sufficient compliance with s 103 of the Plumbing and Drainage Regulation 2019 in respect of the relevant work of removal of backflow prevention device (serial number 2706493), by the notification given in Form 9 dated 4 February 2025.

[1] Agreed Appeal Record Book ("ARB"), filed 26/6/25, p 20.

[3] That may be understood in the sense that s 96 of the PDR is to be regarded as a regulation made pursuant to s 157 of the PDA.

[4] Respondent's written submissions filed 23/7/25, at 3.7.

[5] Neither was the appellant's reference to the "glossary", as used in the PDR and defined in the PDA, to mean "AS/NZS3500 (Plumbing and drainage), part O (Glossary of terms) as in force from time to time, specifically put in issue, in terms of it being a reference to a "device to prevent backflow caused by back-siphonage or back pressure with two independently operating force loaded non-return valves".[ ]

[7] Cf: Respondent's written submissions filed 23/7/25, [10.12], citing Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405.

[9] Appellant's written submissions filed 14/7/25, [88].

[10] Cf: T 1-24.1 - 1-24.25 and T 1-28.35 - 1-29.7.