(Everson DCJ – 30 August 2016) 

Appeal – where respondents failed to comply with an Enforcement Notice – where the Magistrate dismissed the complaint on the basis that there was no case to answer- where appellant seeks to appeal against the order of the Magistrate – whether there was jurisdiction to challenge the Enforcement Notice before the Magistrate

Facts:  This was an appeal by the appellant Council against an order of the Magistrates Court that the respondents had no case to answer in respect of a prosecution brought by the appellant Council for failing to comply with an enforcement notice.

The enforcement notices related to a timber sleeper retaining wall which straddled the boundary between the respondents’ land and their neighbour’s land.  It was a timber post and rail wall that varied in height from 0.5 metres to 2.7 metres.  It was infested with termites and in danger of collapse. 

Part of the wall was located on the respondents’ land and part of the wall was located on the neighbour’s land.  The appellant Council issued identical enforcement notices to the respondents and their neighbour.

During the course of the hearing before the Magistrates Court, it was clear neither the respondents nor their neighbour could unilaterally replace the wall without trespassing on the property of the other part.  In the circumstances, a better approach would have been to issue one enforcement notice addressed to both of them.

The Magistrate found there was no case to answer as:

  1. the notice referred to the whole wall and not only part of the structure owned by the defendants (respondents in this proceeding); and
  2. to comply with the notice, the defendants (respondents in this proceeding) had to go on to their neighbour’s land to find a solution.

In the circumstances, the appellant Council could not enforce compliance with the notice and the defendants (the respondents in this case) had no case to answer. 

The District Court was required to determine the following issues:

  1. whether the enforcement notice was defective; and
  2. whether the lawfulness of the enforcement notice was capable of challenge before the Magistrates Court.

Decision:  

  1. The Court allowed the appeal and ordered that the matter be remitted to the Magistrate for determination according to law.
  2. The appellant Council argued 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 each notice, to address the problems identified by the Magistrates Court.  However, the Court found that the enforcement notice directed the respondents to unlawfully carry out work on the land of their neighbour and it was therefore defective.
  3. The appellant Council argued that the enforcement notice could not be challenged in the prosecution before the Magistrates Court.  This was because the legislative scheme allowed the recipient of an enforcement notice to appeal against the notice pursuant to the Building Act 1975 (Qld) or otherwise challenge its validity under the Judicial Review Act 1991 (Qld) (JRA).
  4. The elements of the offence for failing to comply with an enforcement notice were that a person was given an enforcement notice and that the person failed to comply with it.  Therefore, the appellant Council submitted that there was no right to challenge the lawfulness of it upon prosecution for the offence.
  5. In determining whether the language of the Building Act and the SPA expressed an intention that an enforcement notice was formally valid on its face may not be challenged in a proceeding in the Magistrates Court upon prosecution for an offence for failing to comply with it, the Court considered a series of decisions.
  6. The Court found that the correct approach was that adopted in the decision of R v Wicks [1998] AC 92 and applied in the decision of Krulow v Glamorgan Spring Bay Council [2013] 23 TAS R 264.  It held that in circumstances where the appellant Council reasonably believed the retaining wall was dangerous, it was entirely appropriate that a challenge to the enforcement notice be started promptly by an appeal to the Building and Development Committee.  An appeal to the Planning and Environment Court would lie from any decision on the appeal.  The validity of the enforcement notice could also be challenged under the JRA.  It was not in the public interest that the recipient of an enforcement notice be permitted to do nothing in response to it and only challenge its validity much later, when the offence of failing to comply with it finally comes before the Magistrates Court. 
  7. The Court concluded that the lawfulness of the enforcement notice was not capable of being challenged before the Magistrates Court.  There was therefore no jurisdiction to challenge it before the Magistrates Court.

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