Australia: Can an enforcement notice be challenged during a prosecution?

While there have been competing UK and interstate decisions dealing with whether a recipient of an enforcement notice has the right to challenge the validity of that notice at trial, two recent decisions – by the District Court and the Court of Appeal – have clarified the law on this point in Queensland.

When a regulating authority has decided to prosecute for failing to comply with an enforcement notice, one option for the recipient of the notice has been to seek to challenge the validity of it during those quasi-criminal proceedings rather than having pursued his or her right to appeal or bring an application for declaratory proceedings in the Planning and Environment Court1.

The timing and the jurisdiction in which to challenge has always raised a practical problem for the prosecutor who has prepared a case to prosecute an offence, yet is forced to defend an application at trial that the notice in invalid.

While there have been competing UK and interstate decisions dealing with whether the recipient of the notice has the right to challenge the validity of a notice at trial, two recent decisions – by the District Court and the Court of Appeal – now clarify the law on this point in Queensland.

Case 1: Gold Coast City Council v Lear & Anor [2016] QDC 215

On 30 August 2016, His Honour Judge Everson delivered judgment in Gold Coast City Council v Lear & Anor [2016] QDC 215. The case concerned an appeal against the decision of a Magistrate in relation to a prosecution for failing to comply with an enforcement notice under the Building Act 1975 relating to a dangerous structure, namely a retaining wall.

A timber sleeper retaining wall straddled the boundary between the respondents' land and their neighbour's land. Neither the respondent nor their neighbour could unilaterally replace the wall without committing trespass.

Both the Magistrates Court and District Court considered that, given there was one structure (partly on the land of each of the parties) which needed replacing, a better approach would have been to issue one enforcement notice addressed to all the neighbours. The Court held that the validity of an enforcement notice cannot be challenged during a prosecution – and in fact, in this case, the enforcement notice was not lawful, but on its face, it was valid.

In referring to the UK decision, R v Wicks2, Judge Everson DCJ noted that 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. His Honour noted that 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 comes before the Magistrates Court. Judge Everson also stated that given the technical subject matter of the enforcement notice, it was appropriate for a specialised tribunal of fact to deal with it.

Case 2: Conquest & Anor v Bundaberg Regional Council [2016] QCA 203

The slightly earlier case of Conquest & Anor v Bundaberg Regional Council [2016] QCA 203 also provides some comfort to regulators seeking to prosecute for failure to comply with an enforcement notice.

Before an enforcement notice can be given, the regulator must reasonably believe that the person has committed, or is committing, a development offence. However, this case confirms that under Queensland planning legislation3, the elements of the offence is that a person was given an enforcement notice and did not comply with that notice. The prosecutor does not have to look beyond that and prove that the recipient also committed a development offence.

In this case, the Court of Appeal concluded it was not appropriate to consider whether the notice could be challenged in the Magistrates Court because that argument had not been raised in either the Magistrates Court or on appeal to the District Court.

THREE KEY TAKEAWAYS

There are three key things to take away from the two cases discussed above:

Firstly, where there are a number of parties involved, the regulating authority should ensure that it does not, even by implication, require those parties to breach the law in any respect. Otherwise, the statutory notice may be unlawful.

Secondly, committing a development offence is not an element of the offence of failing to comply with an enforcement notice.

Thirdly, if recipients are concerned that there are sufficient grounds to challenge the giving of an enforcement notice (including whether the regulator reasonably believed that the intended recipient has committed, or is committing, a development offence), the challenge should be mounted via the right of appeal to, or seeking declaratory relief in, the Planning and Environment Court4 and not during a prosecution.

1 Or, where appropriate, to the Building and Development Committee

2 [1998] AC 92

3 This case was decided under the Integrated Planning Act 1997 but its principles equally apply to the Sustainable Planning Act 2009.

4 Or, where relevant, another tribunal such as the Building and Development Committee.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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