Brisbane City Council v Brand & Anor [2022] QPEC 35 [2023] QPELR 1246

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Brisbane City Council v Brand & Anor [2022] QPEC 35 PARTIES: BRISBANE CITY COUNCIL (Appellant) v RUTH EVAN BRAND and ANDREA MAPELLI (Respondents) FILE NO/S: 301 of 2022 DIVISION: Planning and Environment PROCEEDING: Appeal against a decision of the Development Tribunal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 27 September 2022 DELIVERED AT: Brisbane HEARING DATE: 12 September 2022 JUDGE: Kefford DCJ ORDER: The appeal is dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL AGAINST DECISION OF THE DEVELOPMENT TRIBUNAL - where the Council gave an enforcement notice for an alleged offence under s 165 of the Planning Act 2016 on the belief the subject land is being used for an unlawful use – where the Respondents appealed the enforcement notice to the Development Tribunal – where Council appeals the decision of the Development Tribunal to allow the appeal and replace the decision to not give the enforcement notice – whether the Development Tribunal has jurisdiction to hear an appeal against a decision to give an enforcement notice in relation to a matter under paragraphs (a) to (g) of section 1(2) of Schedule 1 of the Planning Act 2016 - whether the Council should be permitted to agitate issues not identified in the Notice of Appeal – whether the Development Tribunal erred in its construction of “a material change of use for a classified building” - what is the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016 - whether the decision to give an enforcement notice was “in relation to” the identified matter. -- 1 of 25 -- 2 LEGISLATION: Building Act 1975 (Qld) ss 3, 109 Planning Act 2016 (Qld) ss 6, 165, 168, 229, 230, sch 1, sch 2 CASES: BRF038 v Republic of Nauru [2017] HCA 44; (2017) 91 ALJR 1197, applied O’Brien & Ors v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, applied O'Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356, cited Ruhani v Director of Police [2005] HCA 42; (2005) 222 CLR 489, applied Southern Downs Regional Council v Home worthy Inspection Services (as agent for Robert and Cheryl Newman) [2020] QPEC 61; [2021] QPELR 1085, approved Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418, applied COUNSEL: M Batty and J Bowness for the Respondents SOLICITORS: Brisbane City Legal for the Appellant Davis Lawyers for the Respondents TABLE OF CONTENTS Introduction .......................................................................................................................... 3 What is the nature of the appeal? ......................................................................................... 3 What are the issues to be determined? ................................................................................. 4 What was the decision of the Development Tribunal? ..................................................... 4 What allegations did the Council seek to advance at the hearing? .................................. 5 What are the grounds of appeal? ...................................................................................... 5 What are the errors or mistake in law on the part of the tribunal or jurisdictional errors that are identified in the Notice of Appeal?...................................................................... 8 Did the Development Tribunal err in its construction of “a material change of use for a classified building”? ........................................................................................................... 10 Did the Development Tribunal err in the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016? ................................................................................... 14 Did the Development Tribunal err in finding that the enforcement notice is “in relation to” a matter under sch 1, s 1(2)(a) of the Planning Act 2016? ................................................. 14 Was the Development Tribunal’s jurisdiction was excluded under sch 1, s 1(3)(a)(i) of the Planning Act 2016? ............................................................................................................ 15 Conclusion .......................................................................................................................... 15 Attachment A – Extract from the reasons of the Development Tribunal ........................... 16 -- 2 of 25 -- 3 Introduction [1] Ruth Eva Brand and Andrea Mapelli (“the Respondents”) own land at 25 Arakuta Street, Lota. The land is properly described as Lot 200 on RP 33230 (“the subject land”). [2] On 5 May 2021, Brisbane City Council (“the Council”) gave an enforcement notice to the Respondents under s 168 of the Planning Act 2016 (Qld). The underlying basis for the enforcement notice is the stated belief that the subject land is being used for five self-contained units and that such use is not a lawful use. The enforcement notice alleges that an offence was committed under s 165 of the Planning Act 2016. [3] On 13 May 2021, the Respondents appealed the Council’s decision to give an enforcement notice to the Development Tribunal. The Development Tribunal (constituted by Ms Michelle Pennicott and Ms Julie Brooke) heard the appeal on 26 November 2021. On 10 January 2022, the Development Tribunal allowed the appeal and replaced the Council’s decision to give the enforcement notice with a decision to not give the enforcement notice. On 4 February 2022, the Council commenced the current appeal against the comprehensive decision of the Development Tribunal. What is the nature of the appeal? [4] The relevant right of appeal is conferred by s 229 and sch 1, item 1(4) and table 2, item 1 of the Planning Act 2016 (Qld). It states: “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.” [5] Consistent with my observations in Southern Downs Regional Council v Home worthy Inspection Services (as agent for Robert and Cheryl Newman),1 this provision confers judicial power to examine the decision of the Development Tribunal for legal or jurisdictional error. While the right of review is described as an appeal, the Court is exercising original jurisdiction, rather than appellate jurisdiction, as the power conferred relates to the review of a decision that does not involve the exercise of a judicial power.2 [6] It is for the Council to establish that the appeal should be upheld.3 1 [2020] QPEC 61; [2021] QPELR 1085, 1102-5 [67]-[77]. 2 See, eg, Ruhani v Director of Police [2005] HCA 42; (2005) 222 CLR 489 at 510-1 [49]-[50] per McHugh J citing Farbenfabriken Bayer Aktiengesellschaft v Bayer Pharma Pty Ltd (1959) 101 CLR 652, Watson v Federal Commissioner of Taxation (1953) 87 CLR 353 at 371 and Pasini v United Mexican States (2002) 209 CLR 246 at 253-4 [10]-[13] per Gleeson CJ, Gaudron, McHugh and Gummow JJ. See also BRF038 v Republic of Nauru [2017] HCA 44; (2017) 91 ALJR 1197 at 1204 [40]. 33 Planning and Environment Court Act 2016 (Qld) s 45(1)(d). -- 3 of 25 -- 4 What are the issues to be determined? [7] There is a dispute between the parties about the ambit of the issues raised in the appeal. The Respondents say that the only issues to be determined are those identified in the Notice of Appeal. They say that the issues raised by the Council’s written submissions and oral argument go beyond the issues raised in the Notice of Appeal. The Respondents say that, to the extent that the Council attempt to raise issues not identified in its Notice of Appeal, the Council should not be permitted to now agitate those issues. [8] To appreciate the extent of issues raised, and those said to be outside the ambit of this appeal, it is necessary to consider the ground of appeal in the Notice of Appeal in the context of the decision of the Development Tribunal. What was the decision of the Development Tribunal? [9] Section 255 of the Planning Act 2016 states: “255 Notice of tribunal’s decision A tribunal must give a decision notice about the tribunal’s decision for tribunal proceedings, other than for any directions or interim orders given by the tribunal, to all parties to proceedings.” [10] Pursuant to s 6 and sch 2 of the Planning Act 2016, the decision notice from the Development Tribunal was required to state, amongst other things, the decision, and the reasons for the decision. [11] The Development Tribunal’s decision was given on 10 January 2022. The Development Tribunal allowed the appeal and replaced the decision to give the enforcement notice dated 5 May 2021 with a decision to not give the enforcement notice. [12] Under a heading “Jurisdiction”, the decision notice states: “10. The Tribunal has jurisdiction for an appeal against a decision to give an enforcement notice in relation to a matter under paragraphs (a) to (g) of section 1(2) of Schedule 1 of the Planning Act 2016. 11. The Tribunal is of the view it has jurisdiction to decide this appeal. In short, the Tribunal is of the view that: (a) “a material change of use of a classified building”’ is one of the matters under paragraphs (a) to (g); and (b) the decision to give the enforcement notice in this appeal concerns an unlawful use of a class 1 building which is “in relation to a material change of use of a classified building”’. 12. The detailed reasons for this view are set out in the Appendix to this decision.” -- 4 of 25 -- 5 [13] Although the reasons in the Appendix are lengthy, to appreciate the Respondents’ allegation about the ambit of the appeal, and to deal with the grounds of appeal, it assists to set them out in full. I have set them out at Attachment A, at the end of this judgment. [14] It is apparent from these reasons that the Development Tribunal’s decision with respect to its jurisdiction was informed by its determination about: (a) the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016; and (b) whether the decision to give an enforcement notice was “in relation to” the identified matter, i.e., whether there was the necessary relationship between the enforcement notice and the “matter”. What allegations did the Council seek to advance at the hearing? [15] At the hearing, the Council sought to advance four allegations of error. [16] First, the Council alleges that the Development Tribunal erred in its construction of “a material change of use for a classified building” in sch 1, ss 1(2)(a), (b) and (c) of the Planning Act 2016.4 [17] Second, the Council alleges that the Development Tribunal erred in the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016. [18] Third, the Council alleges that the necessary relationship does not exist between the enforcement notice and the “matter” the subject of sch 1, s 1(2)(h) of the Planning Act 2016.5 [19] Fourth, the Council alleges that, even if it is wrong about the proper construction of sch 1, s 1(2)(h) of the Planning Act 2016, the Development Tribunal’s jurisdiction was excluded under sch 1, s 1(3)(a)(i) of the Planning Act 2016.6 [20] The Respondents accepts that it is arguable that the first allegation is raised by paragraph 10 of the Notice of Appeal. It accepts that the third allegation is raised by paragraphs 8 and 9 of the Notice of Appeal. It says that the second and fourth allegations are not raised in the Notice of Appeal and the Council should not now be permitted to rely on them. What are the grounds of appeal? [21] The grounds of appeal are to be found in the Notice of Appeal. Paragraphs 1 to 5 of the Notice of Appeal set out background matters about the appeal to the Development 4 Submissions on behalf of the Appellant pp 8-10 [29] – [36]; Transcript of Proceedings, Brisbane City Council v Tina and Tony Pty Ltd; Brisbane City Council v Brand & Anor (Planning and Environment Court of Queensland, 300 of 2022 and 301 of 2022, Kefford DCJ, 12 September 2022) 7-8. 5 Submissions on behalf of the Appellant p 10 [32] – [33], p 11 [37] – [38]. 6 Submissions on behalf of the Appellant pp 11-2 [41] – [44]. -- 5 of 25 -- 6 Tribunal. The basis for the challenge to the decision is then set out in paragraphs 6 to 12 of the Notice of Appeal, which state: “6. The Development Tribunal provided a written decision for the appeal which included 8 pages of reasons for determining that the Tribunal had jurisdiction to hear and determine the appeal. 7. The Development Tribunal found (footnotes omitted): 118. However, in the Tribunal's view, an enforcement notice which alleges an unlawful use is also "in relation to a material change of use". 119. ‘In relation to’ is a broad relational phrase — it conveys a broad relationship between the decision to give an enforcement notice and a material change of use: “The prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters”. 120. In the Tribunal’s view, that relationship exists where an enforcement notice alleges a use is not a lawful use. This is because a necessary element of that offence is that there has been a material change of use of premises. To make out the offence, it must be proven that the use of premises is not the natural and ordinary consequence of making a material change of use of premises in compliance with the Planning Act 2016. 121. A material change of use is therefore at the heart of an allegation of an unlawful use. 122. The Enforcement notice here specifically recognises that necessary relationship to make out the offence: “25. Under the Plan a Material Change of Use of the premises for the purpose of “undefined use” in a Low- Density Residential Zone is assessable development requiring a Development (Planning) Approval from Council. 26. On 4 August 2020, a search of Council records indicates there has been no Development (Planning) Application made to Council nor any Development (Planning) Approval issued by Council regarding the undefined use on the premises”. Is the Enforcement notice in relation to a material change of use of, or for, a classified building? 123. The remaining question is whether the Enforcement notice is in relation to a material change of use of, or for, a classified building. -- 6 of 25 -- 7 124. The premises in question are a class 1 building.24 The premises are therefore are a “classified building”. 125. In paragraphs (a) to (c) of section 1(2) of Schedule 1 of the Planning Act 2016 the expression is a material change of use ‘for’ a classified building, whereas in paragraphs (e) and (t) the expression is a material change of use ‘of’ a classified building. 126. Despite difference in prepositions, the Tribunal considers that all paragraphs are to be read as a material change of use ‘of’ a classified building. 127. When the phrase 'material change of use' is used in a sentence about premises, then sensibly it must be read as a material change of use of those premises. That accords with the definition of material change of use referring to a material change of use ‘of premises’. Conclusion on jurisdiction 128. The Tribunal concludes that it has jurisdiction to hear this appeal. The appeal is against a decision to give an enforcement notice in relation to a matter under paragraph (a) to (g), specifically a material change of use of a classified building. The Enforcement notice is in relation to a material change of use for a classified building because it relates to a material change of use of a class 1 building to an undefined use. 8. It is the basis for which the enforcement notice is given that is the “matter” that needs to be identified in subsections 1(2)(a)- (g) and for which the Enforcement notice must be “in relation to”. The proposition that any loose association will do leads to nonsensical outcomes (at no part of the substantive decision is the fact the building is a classified building relevant or referred to). 9. While a development approval, and the fact that there has been, or could be, a change of use for a classified building, may be relevant to the consideration of whether the development offence has occurred, the appeal is not “in relation to” the development approval or the change of use of a classified building itself. 10. The matters in subsections 1(2)(a)-(c) are restricted to the change of use of a “classified building”, which are matters that are addressed under the Building Act 1975 (Building Act). 11. The Tribunal did not have Jurisdiction to hear and determine the appeal. -- 7 of 25 -- 8 12. In the circumstances: (a) The Development Tribunal erred in law in its interpretation of the limitations placed on its jurisdiction by Schedule 1, Item 1(2) of the Planning Act 2016. (b) The Development Tribunal did not have jurisdiction to hear and determine the appeal and, in doing so, fell into jurisdictional error. (c) The decision of the Development Tribunal should be set aside and this Court should replace the decision of the Development Tribunal with decision dismissing the appeal.” What are the errors or mistake in law on the part of the tribunal or jurisdictional errors that are identified in the Notice of Appeal? [22] Pursuant to s 230 of the Planning Act 2016, an appellant starts an appeal by lodging a notice of appeal that is in the approved form and succinctly states the grounds of appeal. [23] In Trinity Park Investments Pty Ltd v Fabcot & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors,7 with respect to an appeal from the Planning and Environment Court to the Court of Appeal on the ground of error or mistake in law or jurisdictional error, Bond JA (with whom Morrison JA and Bradley J agreed) observed: “[70] It is axiomatic that an applicant for leave to appeal under s 63 should clearly and distinctly identify the error or mistake in law which is said to have been made by the primary judge. … [73] However, the applicants were unable identify any such error of law at all. [74] For its part, Dexus advanced this general statement: “While the decision of the primary judge involved the exercise of a discretion, it is established that an applicant which brings itself within the principles discussed in the well-known decision in House v The King 1936 55 CLR 499 satisfies an error of law ground such as that contained in s.63 of the PECA. The grounds also assert errors in principle, and it is established that it is an error of law to act on a wrong principle.” [75] And Trinity contended that leave should be granted because: “(a) wrongful rejection of admissible evidence is prima facie an error of law if it may affect the outcome. It is sufficient to demonstrate that the error was material in 7 [2021] QCA 276. -- 8 of 25 -- 9 the sense that it “could have materially affected the decision”; and (b) the primary judge misconceived the legal consequence of the earlier appeal to this Court being upheld and the remittal of the proceeding back to the primary judge to be determined according to law.” [76] The first problem with both statements is that they are hopelessly general and do not condescend to the identification of any particular legal error or mistake in either the imposition or formulation of the limitations set out in paragraphs [22] to [25] of the primary judge’s reasons. On an application of the present nature, it is not up to this Court to wade through the documents to see if a question of law can somehow be found by the examination of written or oral arguments which in an undifferentiated way merely contend that a primary judge erred “in law” in reaching a particular outcome. If there is legal error, it must be specifically identified. As Posner J famously observed in US v Dunkel 927 F. 2d 955 (7th Cir 1991), “Judges are not like pigs, hunting for truffles buried in briefs.””8 [24] Those observations are apposite in this case. It is difficult to find a clear statement of what the appellant advances as the error of law or jurisdictional error. [25] When the Notice of Appeal is read in its entirety, paragraphs 11 and 12 of the Notice of Appeal are clearly conclusions that are said to follow from the allegations in paragraphs 7, 8, 9 and 10 of the Notice of Appeal. Paragraphs 11 and 12 do not, of themselves, raise issues to be determined. They are too general to do so as they do not identify the nature of the mistake that is alleged. That is material given there were multiple findings by the Development Tribunal’s that informed its ultimate finding with respect to jurisdiction. [26] When one compares the grounds of appeal to the reasons of the Development Tribunal with respect to jurisdiction, it is immediately apparent that the only part of the reasons that are extracted in paragraph 7 of the Notice of Appeal is that part that relates to the Development Tribunal’s decision about whether there was the necessary relationship between the enforcement notice and the “matter”. The Notice of Appeal neither extracts nor refers to the reasoning of the Development Tribunal about the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016. [27] Paragraphs 8, 9 and 10 then contain the substance of the Council’s allegations. They do not identify any legal error or mistake. Rather, they contain assertions about what the Council says is the appropriate approach. [28] In that respect, paragraph 8 focuses on the relationship between the enforcement notice and the “matter” and what the Council says is required in terms of the strength of the relationship. 8 Trinity Park Investments Pty Ltd v Fabcot & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd & Ors [2021] QCA 276 (footnotes omitted, emphasis added). -- 9 of 25 -- 10 [29] The point of paragraph 9 of the Notice of Appeal is unclear. At its heart, it appears to be an assertion that the appeal is not “in relation to” the development approval or the change of use of a classified building itself. It is unclear how this relates to the findings of the Development Tribunal. The Development Tribunal’s findings with respect to jurisdiction were not contingent on a finding that the appeal related to the existence of a development approval or the change of use of a classified building itself. The focus of the Development Tribunal’s attention, in terms of the necessary connection to a “matter”, was the enforcement notice. [30] Paragraph 10 of the Notice of Appeal is even more cryptic than paragraph 9. It is difficult to discern an alleged error from that paragraph. [31] For the reasons provided above, it seems to me the Council has not properly identified any error or mistake in law on the part of the Development Tribunal, nor any error with respect to jurisdiction. That is a sufficient reason, of itself, to dismiss the Council’s appeal. However, for completeness, I will briefly address each of the allegations made by the Council at the hearing. Did the Development Tribunal err in its construction of “a material change of use for a classified building”? [32] The Council submits that the reference to “a material change of use for a classified building” in sch 1, ss 1(2)(a), (b) and (c) of the Planning Act 2016 should be construed as meaning a change of building classification under ss 109 to 113 of the Building Act 1975.9 It says that a change of building classification is assessable under the building assessment provisions.10 It says the enforcement notice did not relate to a change of classification and, as such, the Development Tribunal did not have jurisdiction under sch 1, ss 1(2)(a), (b) and (c) of the Planning Act 2016.11 [33] The Council’s submissions are founded on the proposition that ss 109 to 113 of the Building Act 1975 make the change of classification of a building assessable development under the Planning Act 2016. The Council appears to arrive at that conclusion because s 109(1) of the Building Act 1975 states: “A BCA classification or use change to a building is– (a) a change to the use for which the building was designed, built for adapted to be used if– (i) the change of use alters its BCA classification; or (ii) the change of use does not alter its BCA classification but the new use requires building work to be carried out for the building to comply with any relevant building assessment provisions applying to the new use; or 9 Submissions on behalf of the Appellant pp 8-10 [29] – [36]; Transcript of Proceedings, Brisbane City Council v Tina and Tony Pty Ltd; Brisbane City Council v Brand & Anor (Planning and Environment Court of Queensland, 300 of 2022 and 301 of 2022, Kefford DCJ, 12 September 2022) 7-8. 10 Transcript of Proceedings, Brisbane City Council v Tina and Tony Pty Ltd; Brisbane City Council v Brand & Anor (Planning and Environment Court of Queensland, 300 of 2022 and 301 of 2022, Kefford DCJ, 12 September 2022) 8 and 13. 11 Transcript of Proceedings, Brisbane City Council v Tina and Tony Pty Ltd; Brisbane City Council v Brand & Anor (Planning and Environment Court of Queensland, 300 of 2022 and 301 of 2022, Kefford DCJ, 12 September 2022) 7-18. -- 10 of 25 -- 11 Example of BCA classification or use change for paragraph (a)(ii) a change in the use of a class 7b warehouse to an occupancy for excessive hazard by storing combustible cartons above 4m in height or more than 1,000m3 of combustible cartons (b) if, under section 103(e), a certificate of occupancy for the building states a restriction on its use or occupation– a change in circumstances that affects the way the building complies with the restriction. Example of BCA classification or use change for paragraph (b) a change in the nature or quantity of materials displayed, stored or used in a building that increases the risk to life or safety, requiring building work to be carried out to comply with the BCA” [34] As was revealed during oral submissions, the Council reads the reference to “use change” and “a change to the use” as synonymous with the concept of “a material change of use” under the Planning Act 2016. In support of its construction, the Council relies on the fact that the Building Act 1975 makes certain development assessable development for the purpose of the Planning Act 2016. [35] The Respondents disagree with the Council’s contention. They submit: “29. A classified building means a building classified under the Building Code as a class 1 or class 10 building.12 The Land the subject of the Enforcement notice is improved by a class 1 building.13 30. A class 10 building includes one or more of the following sub- classifications:14 (a) Class 10a is a non-habitable building including a private garage, carport, shed or the like. (b) Class 10b is a structure that is a fence, mast, antenna, retaining wall or free-standing wall or swimming pool or the like. (c) Class 10c is a private bushfire shelter. 31. The Building Code has the same meaning as Building Code of Australia under the Building Act, section 12.15 That is the National Construction Code in the Building Code of Australia (NCC). 32. The introduction to “Part A6 Building Classification” of the NCC states: “The NCC groups buildings and structures by the purpose for which they are designed, constructed or adapted to be used, rather than by the function or use 12 Planning Act 2016, Schedule 2. 13 Appeal Book, p.19, para 109. 14 National Construction Code, A6.10. 15 Planning Act 2016, Schedule 2. -- 11 of 25 -- 12 they are put to, assigning each type of building or structure with a classification. This Part explains how each building classification is defined and used in the NCC.” (Emphasis added) 33. Changes to building classifications do not deal with the “function or use” a building is put to. Rather, the use of premises is subject to the PA assessment regime.”16 [36] There is force to the Respondents submissions. [37] Further, and in any event, I am not attracted to the interpretation contended for by the Council. The Council’s approach seeks to construe s 109 of the Building Act 1975 out of context. The Council’s construction overlooks that the purpose of the Building Act 1975 is not limited to regulating building development approvals. As is recorded in the long title, the Building Act 1975 is: “An Act to regulate An Act to regulate building development approvals, building work, building classification, building certifiers and pool safety inspectors, and to provide for particular matters about swimming pool safety and sustainable buildings, and for other purposes”. [38] The differing forms of regulation under the Building Act 1975 is also apparent from s 3, which provides a simplified outline of main provisions of the Act. It states: “(1) Chapter 2 provides for what building work is assessable development or accepted development for the Planning Act. (2) Chapter 3 imposes requirements, in addition to those under the Planning Act, for making a building development application. (3) Chapter 4— (a) provides for the laws and other documents for the assessment of building development applications; and (b) provides for who is responsible for carrying out building assessment work for building development applications; and (c) regulates the assessment and approval of building development applications. (4) Chapter 5— (a) provides for the giving of final inspection certificates and other inspection documentation for particular buildings; and (b) provides for the giving of certificates of occupancy for other buildings; and 16 Written Submissions on behalf of the Respondent p 6 (original footnotes). -- 12 of 25 -- 13 (c) regulates the making of BCA classification or use changes; and (d) restricts the occupation and use of particular buildings. (5) Chapter 6— (a) regulates private certifiers and other building certifiers and the performance of building and private certifying functions; and (b) regulates the engagement of private certifiers; and (c) provides for the licensing of, and complaints, investigations, and disciplinary proceedings against, private certifiers and other building certifiers. (6) Chapter 7 makes provisions about fire safety for budget accommodation buildings. (7) Chapter 7A makes provision about fire safety for particular residential care buildings. (8) Chapter 8 provides for matters about swimming pool safety, including the regulation of swimming pool fencing. (9) Chapter 8A regulates the effect of particular instruments in relation to stated matters for class 1a, 2 or 10a buildings. (10) Chapter 8B provides for the designation of land as a transport noise corridor for particular building assessment work. (11) Chapter 9 provides for the giving of show cause and enforcement notices for particular building work. Note— The QBCC Act also provides for enforcement action relating to building work.” [39] Chapters 2, 3 and 4 relate to the assessment of building work for the purposes of the Planning Act 2016. Chapter 5 does not. The provisions on which the Council relies in support of its submissions are in Chapter 5. [40] I can see no reason in the text of the Building Act 1975, or otherwise, to construe s 109 of the Building Act 1975 as making the change of a classification of a building assessable development as a material change of use for the purpose of the Planning Act 2016. [41] Ultimately, it is not necessary for me to determine this allegation as the Council abandoned it during the hearing.17 17 Transcript of Proceedings, Brisbane City Council v Tina and Tony Pty Ltd; Brisbane City Council v Brand & Anor (Planning and Environment Court of Queensland, 300 of 2022 and 301 of 2022, Kefford DCJ, 12 September 2022) 15-9. -- 13 of 25 -- 14 Did the Development Tribunal err in the meaning to be ascribed to “matter” in sch 1, s 1(2)(h) of the Planning Act 2016? [42] The Council submits that the relevant “matter” must be construed as including all the words that appear in sch 1, ss 1(2)(a) to (g). For example, for s 1(2)(a), the relevant “matter” to which an enforcement notice must relate is “the refusal, or deemed refusal of a development application for a material change of use for a classified building”.18 [43] The Council submits that the approach to construction adopted by the Development Tribunal gives no work to the leading words of each of sub-paragraphs (a) to (f) in s 1(2). I disagree. Those words have work to do for the purpose of those provisions. The question of construction for the Development Tribunal was a different question. It was not about the proper construction of sch 1, ss 1(2)(a) to (g). The Development Tribunal was construing the meaning of “matter” under sch 1, s 1(2)(h). [44] I can find no fault with the Development Tribunal’s reasoning in this regard.19 Did the Development Tribunal err in finding that the enforcement notice is “in relation to” a matter under sch 1, s 1(2)(a) of the Planning Act 2016? [45] The Council submits that the enforcement notice has no relevant relationship to a matter in sch 1, ss 1(2)(a) to (g) of the Planning Act 2016.20 [46] The Respondents submit that the Development Tribunal did not err in its interpretation of the words “in relation to”. They say the Development Tribunal applied the leading High Court authority of O’Grady v Northern Queensland Co Ltd21 as requiring a broad relationship between two subject matters, as limited by the context of the legislation. The Respondents note that the Council acknowledges that the alleged unlawful use of premises does “raise a question of a material change of use of that classified building”.22 The Respondents submit that the Development Tribunal found that the relationship was sufficient because a material change of use is “at the heart” of an allegation of unlawful use. They say that was the correct approach. [47] I accept the submissions of the Respondent. I can find no fault with the Development Tribunal’s reasoning in this regard.23 18 Submissions on behalf of the Appellant pp 8-9 [29] and p 11 [39]; Transcript of Proceedings, Brisbane City Council v Tina and Tony Pty Ltd; Brisbane City Council v Brand & Anor (Planning and Environment Court of Queensland, 300 of 2022 and 301 of 2022, Kefford DCJ, 12 September 2022) 22-4. 19 See the Development Tribunal’s reasons extracted in Attachment A. 20 Submissions on behalf of the Appellant p 10 [33] – [34] and p 11 [37] – [38]. 21 [1990] HCA 16; (1990) CLR 356, 374. 22 Submissions on behalf of the Appellant p 11 [37]. 23 See the Development Tribunal’s reasons extracted in Attachment A. -- 14 of 25 -- 15 Was the Development Tribunal’s jurisdiction was excluded under sch 1, s 1(3)(a)(i) of the Planning Act 2016? [48] The Council alleges that the Development Tribunal’s jurisdiction is excluded under sch 1, s 1(3)(a)(i) of the Planning Act 2016.24 That section provides that there is no right of appeal to the Development Tribunal if the matter involves: “(a) for a matter in subsection (2)(a) to (d)— (i) a development approval for which the development application required impact assessment; and (ii) a development approval in relation to which the assessment manager received a properly made submission for the development application; or (b) a provision of a development approval about the identification or inclusion, under a variation approval, of a matter for the development.” [49] The Respondents say that this allegation was first raised by the Council in its written submissions in this appeal. The allegation is premised on facts that were not before the Development Tribunal. As such, the Respondents submit that this point cannot be argued on appeal.25 [50] The Respondents raise a legitimate issue. In response to it, the Council abandoned the allegation. As such, it is not necessary to deal with this allegation. Conclusion [51] The Council has not discharged the onus. The appeal should be dismissed. 24 Transcript of Proceedings, Brisbane City Council v Tina and Tony Pty Ltd; Brisbane City Council v Brand & Anor (Planning and Environment Court of Queensland, 300 of 2022 and 301 of 2022, Kefford DCJ, 12 September 2022) 45. 25 Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418; O’Brien & Ors v Komesaroff [1982] HCA 33; (1982) 150 CLR 310, 319. -- 15 of 25 -- 16 Attachment A – Extract from the reasons of the Development Tribunal “84. The Tribunal’s jurisdiction is established by the Planning Act 2016, section 229 and Schedule 1. 85. Section 229(1) provides that Schedule 1 states the matters that may be appealed to a tribunal or the P&E Court. 86. Schedule 1, section 1(1) provides that Table 1 states the matters that may be appealed to the P&E Court or a tribunal. 87. In Table 1, one of the matters that may be appealed against is a decision to give an enforcement notice. 88. However, Schedule 1, section 1(2) states that Table 1 applies to a tribunal only if the matter involves a matter listed in paragraphs (a) to (l). 89. One of those listed matters, in paragraph (h) is a decision to give an enforcement notice: (a) in relation to a matter under paragraphs (a) to (g); or (b) under the Plumbing and Drainage Act 2018. 90. The decision to give the Enforcement notice was not under the Plumbing and Drainage Act 2018. 91. Therefore, for the appeal to be within the Tribunal’s jurisdiction, the decision to give the Enforcement notice must be “in relation to a matter under paragraphs (a) to (g)”. 92. This cross-referencing back to other paragraphs as a shorthand description of the limitations of a tribunal’s jurisdiction is not easy to interpret (which is unfortunate given it is the gateway to a dispute resolution jurisdiction which is intended to be quick, simple and free of legal representation) but it requires two questions to be answered: (a) What is a ‘matter’ under paragraphs (a) to (g) that a decision to give an enforcement notice must involve? (b) Is the decision to give the Enforcement notice in this appeal in relation to a matter under paragraphs (a) to (g)? 93. The Appellants submit that the Tribunal does have jurisdiction as the Enforcement notice, in substance, challenges the building certifier’s ability to give a building work approval.26 94. The Council submits that the Tribunal does not have jurisdiction as the appeal is against a decision to give an enforcement notice alleging the unlawful use of a premises which is not an issue that falls in paragraphs (a) to (g).27 The Council submits that while the building work development approval may be relevant 26 Appellants’ submissions dated 21 June 2021. 27 Council’s submissions dated 11 June 2021, paragraph 22. -- 16 of 25 -- 17 to the consideration of whether a development offence has occurred, the appeal is not in respect of the building work development approval itself.28 What is ‘a matter’ under paragraphs (a) to (g) that a decision to give an enforcement notice must involve? 95. Paragraphs (a) to (g) are reproduced below in the full context in which they appear in section 1 of Schedule 1: “Schedule 1 Appeals 1 Appeal rights and parties to appeals (1) Table 1 states the matters that may be appealed to— (a) the P&E court; or (b) a tribunal. (2) However, table 1 applies to a tribunal only if the matter involves— (a) the refusal, or deemed refusal of a development application, for— (i) a material change of use for a classified building; or (ii) operational work associated with building work, a retaining wall, or a tennis court; or (b) a provision of a development approval for— (i) a material change of use for a classified building; or (ii) operational work associated with building work, a retaining wall, or a tennis court; or (c) if a development permit was applied for—the decision to give a preliminary approval for— (i) a material change of use for a classified building; or (ii) operational work associated with building work, a retaining wall, or a tennis court; or (d) a development condition if— (i) the development approval is only for a material change of use that involves the 28 Council’s submissions dated 11 June 2021, paragraph 23. -- 17 of 25 -- 18 use of a building classified under the Building Code as a class 2 building; and (ii) the building is, or is proposed to be, not more than 3 storeys; and (iii) the proposed development is for not more than 60 sole-occupancy units; or (e) a decision for, or a deemed refusal of, an extension application for a development approval that is only for a material change of use of a classified building; or (f) a decision for, or a deemed refusal of, a change application for a development approval that is only for a material change of use of a classified building; or (g) a matter under this Act, to the extent the matter relates to the Building Act, other than a matter under that Act that may or must be decided by the Queensland Building and Construction Commission; or (h) a decision to give an enforcement notice— (i) in relation to a matter under paragraphs (a) to (g); or (ii) under the Plumbing and Drainage Act 2018; or (i) an infrastructure charges notice; or (j) the refusal, or deemed refusal, of a conversion application; or (l) a matter prescribed by regulation.” 96. It can be observed that the leading words in paragraphs (a) to (f) concern various decisions or aspects of decisions e.g. refusal, deemed refusal, preliminary approval, a provision and condition. 97. Each of these decisions being a ‘matter’ is consistent with sub- section 1(1) which states that Table 1 states the ‘matters’ that may be appealed against. Table 1 lists six items, which are also expressed as decisions or aspects of decisions. 98. Ordinarily, grammatical forms of a word have a corresponding meaning, such that ‘matter’ would have a meaning consistent with the meaning of ‘matters’ in sub-section 1(1). That would then lead to paragraph (h) being interpreted to require that a decision to give an enforcement notice must involve a decision or aspect of decision in paragraphs (a) to (f). Paragraph (g) is -- 18 of 25 -- 19 expressed differently, referring itself to “a matter under this Act”. 99. However, does that meaning (a matter being the decision or aspect of decision in the leading words in each of paragraphs (a) to (f)) sit comfortably with what an enforcement notice can be given for? What an enforcement notice can be given for 100. ‘Enforcement notice’ is defined in section 168(2) of the Planning Act 2016 as a notice that requires a person to do either or both of the following: (a) to refrain from committing a development offence; (b) to remedy the effect of a development offence in a stated way.29 101. ‘Development offence’ is defined in section 161 of the Planning Act 2016 as being an offence created under Chapter 5, Part 2. Those offences are: (a) a person must not carry out prohibited development (s162); (b) a person must not carry out assessable development, unless all necessary development permits are in effect for the development (s163); (c) a person must not contravene a development approval (s164); (d) a person must not use premises unless the use is a lawful use or, for designated premises, complies with any requirements about the use of premises in the designation (s165); and (e) a person whose development application for [an emergency activity] is refused must restore, as far as practicable, premises to the condition the premises were in immediately before the activity was carried out (s166(7)). Can an enforcement notice involve each of the matters in paragraphs (a) to (g)? 102. When the leading words of paragraphs (a) to (g) are read together with paragraph (h), and with an understanding of what an enforcement notice can be given for: (a) It does not seem possible for there to be a decision to give an enforcement notice specifically in relation to the “refusal, or deemed refusal, of a development 29 There are also enforcement notices under the Building Act 1975 and the Plumbing and Drainage Act 2018 which are specifically provided for in sub-section (1). -- 19 of 25 -- 20 application”. Paragraph (h) cannot be given effect if that is the meaning of “a matter under paragraph (a)”; (b) It is possible for there to be a decision to give an enforcement notice in relation to “a provision of a development approval”. This is because an enforcement notice can be given for the development offence of contravening a development approval and a ‘provision’ of a development approval means all words or matters forming part of the approval.30 Paragraph (h) can therefore be given effect when read together with the leading words of paragraph (b); (c) It does not seem possible for there to be a decision to give an enforcement notice specifically in relation to “if a development permit was applied for—the decision to give a preliminary approval”. Paragraph (h) cannot be given effect if that is the meaning of “a matter under paragraph (c)”; (d) It is possible for there to be a decision to give an enforcement notice in relation to a “condition of a development approval”. This is because an enforcement notice can be given for the development offence of contravening a development approval and a development approval includes a condition.31 Paragraph (h) can therefore be given effect when read together with the leading words of paragraph (d); (e) It does not seem possible for there to be a decision to give an enforcement notice specifically in relation to “a decision for, or a deemed refusal of, an extension application”. Paragraph (h) cannot be given effect if that is the meaning of “a matter under paragraph (e)”; (f) It does not seem possible for there to be a decision to give an enforcement notice specifically in relation to “a decision for, or a deemed refusal of, a change application”. Paragraph (h) cannot be given effect if that is the meaning of “a matter under paragraph (f)”; (g) It is possible for there to be a decision to give an enforcement notice in relation to a matter under the Planning Act 2016 to the extent the matter relates to the Building Act 1975. This is because an enforcement notice can be given for various issues relating to a building, structure or building work under the Building Act 1975 and the enforcement notice is taken to be one given under the Planning Act 2016.32 Paragraph (h) can therefore be given effect when read together with paragraph (g). 30 Planning Act 2016, Schedule 2, definition of ‘provision’. 31 Planning Act 2016, s49(5). 32 Building Act 1975, s 248. -- 20 of 25 -- 21 103. In summary, if ‘matter’ is read as meaning the decision or aspect of decision in the leading words of each paragraph, it produces a nonsensical outcome when paragraphs (a), (c), (e) and (f) are read back with paragraph (h). Ordinary meaning of ‘a matter’ under paragraph (a) to (g) 104. An interpretation which results in paragraphs (a), (c), (e) and (f) having no work to do for the purpose of paragraph (h) warrants consideration being given to whether another interpretation of ‘a matter’ for paragraph (h) is available. This is particularly so given that paragraph (h) expressly calls-up each of paragraphs (a) to (g). 105. In the Tribunal’s view an alternative interpretation of ‘matter’ is available when the natural and ordinary meaning of the word ‘matter’ is used. The Macquarie Dictionary definition of ‘matter’ includes “a thing, affair or business”.33 The Australian Oxford Dictionary 2nd Edition definition of matter includes “a thing or things of a specified kind (printed matter, reading matter)”. Specified types of development under paragraph (a) to (g) 106. Reading ‘matter’ in this way reveals that a decision to give an enforcement notice can be appealed to a tribunal if it is in relation to one of the specified types of development in paragraphs (a) to (g),34 namely: (a) a material change of use for/of a classified building (paragraphs (a), (b), (c), (e) and (f)); (b) operational work associated with building work (paragraphs (a), (b) and (c)); (c) operational work associated with a retaining wall (paragraphs (a), (b) and (c)); (d) operational work associated with a tennis court (paragraphs (a), (b) and (c)); (e) a material change of use that involves a class 2 building no more than 3 storeys and for not more than 60 sole- occupancy units (paragraph (d)). 107. In the Tribunal’s view, this interpretation is to be preferred because it enables all of paragraphs (a) to (g) to be given effect, particularly as they are specifically called-up by paragraph (h). It is a sensible interpretation of ‘matter’ that gives the 33 Macquarie Dictionary (online at 20 December 2021) ‘matter’ (def 8). 34 As well as in relation to a matter under the Planning Act 2016 relating to the Building Act 1975 (paragraph (g)) and under the Plumbing and Drainage Act 2018 (paragraph (h)). -- 21 of 25 -- 22 paragraphs practical operation and ensures no paragraph is rendered “superfluous, void or insignificant”.35 108. It also sits more comfortably with the focus of enforcement notices being development activity by persons, rather than decisions by assessing authorities. 109. The intention of the legislature is sufficiently evident from paragraphs (a) to (g) – that in respect of certain limited types of development, appeals against various decisions are within the tribunal’s jurisdiction. A decision to give an enforcement notice in respect of those types of development is a decision that sits comfortably within that range. 110. The Explanatory Notes do not speak specifically to the intention with respect of enforcement notices. However, they confirm a focus on types of development being within the jurisdiction of a tribunal: “Schedule 1 Appeals Appeal rights and parties to appeals Clause 1 sets out appeal rights under the Bill, including the appellants, respondents, co-respondents and co- respondents by election for each appeal. Table 1 sets out appeals that may be made either to the development tribunal or the P&E court. However for the matters in table 1, appeals may only be made to the development tribunal under certain circumstances, which are identified in this clause. For example, table 1, item 1 provides for appeals by applicants about aspects of decisions about development applications. An appeal may be made to the P&E court in relation to any such application. However an appeal may be made to the development tribunal about applications only to the extent they relate to the Building Act, or are for some material changes of use for classified buildings, or in relation to conditions imposed on development approvals for particular class 2 buildings.” 111. The Tribunal is aware that the Planning Regulation 2017, in setting out the fees for an appeal to a tribunal, expresses the jurisdiction as, “Appeal about an enforcement notice, if the notice relates to a material change of use for a classified building”. While this is consistent with the interpretation the Tribunal has arrived at, the Planning Regulation 2017 cannot be used as extrinsic material to assist in the interpretation of 35 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 [71] citing The Commonwealth v Baume (1905) 2 CLR 405 at 414 per Griffith CJ. -- 22 of 25 -- 23 Schedule 1 of the Planning Act 2016 as it was not in existence at the time the Planning Act 2016 was made. 112. The Tribunal therefore interprets paragraph (h)(i) to mean that a decision to give an enforcement notice can be appealed to a tribunal if it is in relation to: (a) a material change of use for a classified building; (b) operational work associated with building work; (c) operational work associated with a retaining wall; (d) operational work associated with a tennis court; (e) a material change of use that involves a class 2 building no more than 3 storeys and for not more than 60 sole- occupancy units; or (f) a matter under the Planning Act 2016 to the extent the matter relates to the Building Act 1975, other than a matter under that Act that may or must be decided by the Queensland Building and Construction Commission. Is the decision the subject of this appeal in relation to a matter under paragraph (a) to (g)? 113. The Enforcement notice the subject of this appeal alleges that the Appellants have committed and/or is committing a development offence under section 165 of the Planning Act 2016. 114. Section 165 provides that a person must not use premises unless the use: (a) is a lawful use; or (b) for designated premises—complies with any requirements about the use of the premises in the designation. 115. The specific allegation in the Enforcement notice is that the premises is being used for an Undefined Use. 116. ‘Lawful use’, of premises, is defined in Schedule 2 of the Planning Act 2016 to mean a use of premises that is a natural and ordinary consequence of making a material change of use of the premises in compliance with the Planning Act 2016. 117. The Enforcement notice does not allege the development offence of carrying out assessable material change of use without a development permit. If it did, it would clearly be “in relation to a material change of use”. 118. However, in the Tribunal’s view, an enforcement notice which alleges an unlawful use is also “in relation to a material change of use”. -- 23 of 25 -- 24 119. ‘In relation to’ is a broad relational phrase – it conveys a broad relationship between the decision to give an enforcement notice and a material change of use: “The prepositional phrase "in relation to" is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters”.36 120. In the Tribunal’s view, that relationship exists where an enforcement notice alleges a use is not a lawful use. This is because a necessary element of that offence is that there has been a material change of use of premises. To make out the offence, it must be proven that the use of premises is not the natural and ordinary consequence of making a material change of use of premises in compliance with the Planning Act 2016. 121. A material change of use is therefore at the heart of an allegation of an unlawful use. 122. The Enforcement notice here specifically recognises that necessary relationship to make out the offence: “25. Under the Plan a Material Change of Use of the premises for the purpose of "undefined use" in a Low- Density Residential Zone is assessable development requiring a Development (Planning) Approval from Council. 26. On 4 August 2020, a search of Council records indicates there has been no Development (Planning) Application made to Council nor any Development (Planning) Approval issued by Council regarding the undefined use on the premises”. Is the Enforcement notice in relation to a material change of use of, or for, a classified building? 123. The remaining question is whether the Enforcement notice is in relation to a material change of use of, or for, a classified building. 124. The premises in question are a class 1 building.37 The premises are therefore are a ‘classified building’.38 125. In paragraphs (a) to (c) of section 1(2) of Schedule 1 of the Planning Act 2016 the expression is a material change of use 36 O'Grady v Northern Queensland Co Ltd [1990] HCA 16 at [27] per Toohey and Gaudron JJ. 37 Paragraph 8 of the Enforcement notice states that a building approval was granted for Conversion of 1a dwelling to 1b (Rooming Accommodation). 38 ‘Classified building’ is defined to mean a building classified under the Building Code as a class 1 building or a class 10 building incidental or subordinate to [a class 1 building]: Schedule 2 of the Planning Act 2016. Under the Building Code of Australia, both a class 1a and class 1b constitute a class 1 building. -- 24 of 25 -- 25 ‘for’ a classified building, whereas in paragraphs (e) and (f) the expression is a material change of use ‘of’ a classified building.39 126. Despite difference in prepositions, the Tribunal considers that all paragraphs are to be read as a material change of use ‘of’ a classified building. 127. When the phrase ‘material change of use’ is used in a sentence about premises, then sensibly it must be read as a material change of use of those premises. That accords with the definition of material change of use referring to a material change of use ‘of premises’.40 Conclusion on jurisdiction 128. The Tribunal concludes that it has jurisdiction to hear this appeal. The appeal is against a decision to give an enforcement notice in relation to a matter under paragraph (a) to (g), specifically a material change of use of a classified building. The Enforcement notice is in relation to a material change of use for a classified building because it relates to a material change of use of a class 1 building to an undefined use.” (original emphasis and original footnotes) 39 Confusingly, paragraph (d) uses a different expression again in referring to a material change of use “that involves the use of” [a class 2 building]. 40 In contrast, material change of use ‘for’ is used when referring to the use purpose eg. material change of use for a party house and material change of use for a use that was accepted development. -- 25 of 25 --