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.


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.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions