Chadwell Pty Ltd v Gold Coast City Council [2003] QPEC 53 [2004]1 QPELR 47

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Chadwell Pty Ltd v Gold Coast City Council [2003] QPEC 053 PARTIES: CHADWELL PTY LTD Applicant/Appellant v GOLD COAST CITY COUNCIL Respondent FILE NO: 763/2002 DIVISION: Planning & Environment Court PROCEEDING: Application ORIGINATING COURT: Southport DELIVERED ON: 1 August 2003 DELIVERED AT: Southport HEARING DATE: 15 April 2003 JUDGE: Alan Wilson SC DCJ ORDER: Declare under s 4.1.21 of the Integrated Planning Act 1997 that the Enforcement Notice issued to the applicant by the respondent dated 6 August 2002 is invalid. CATCHWORDS: PLANNING & ENVIRONMENT – STATUTORY CONSTRUCTION – Enforcement Notice issued under Integrated Planning Act 1997 Chapter 4, Part 3, Division 1 – whether Enforcement Notice valid – meaning of “start” in IPA s 4.3.1(1) Integrated Planning Act 1997 (Qld) Local Government (Planning and Environment) Act 1990 (Qld) Acts Interpretation Act 1954 Building Act 1975 Cases considered: Fisher v Hebburn Ltd (1960) 105 CLR 188 Maxwell v Murphy (1957) 96 CLR 261 -- 1 of 7 -- 2 COUNSEL: Mr J Houston for the applicant/appellant Mr W Cochrane for the respondent SOLICITORS: Phillips Fox for the applicant /appellant Gadens Lawyers for the respondent [1] The Integrated Planning Act 1997 (IPA) contains, in Chapter 4 Part 3 provisions which allow local authorities to enforce their decisions about planning and associated matters. This application concerns an attempt by the respondent to use that legislation to compel the applicant to take some steps in connection with a large retaining wall at Nerang which it had allegedly constructed in 1995 without proper authorisation. The applicant claims Council’s attempts at enforcement are improper and seeks: (a) a declaration under IPA s 4.1.21 that the Enforcement Notice issued to the applicant by the respondent on 6 August 2003 is invalid; (b) an order under IPA s 4.1.22 that the applicant’s appeal against the Enforcement Notice be allowed. [2] The relevant facts are in fairly small compass although, as is not uncommon in planning cases, the documents about them are voluminous. The applicant purchased about 33 hectares at Kincaid Drive and Armstrong Way, Nerang in 1993 and obtained approval in early 1995 for a subdivision consisting of 18 allotments. Correspondence suggests the approval was subject to a number of conditions including, in particular, the submission of engineering drawings pertaining to earth works and retaining walls. It is not in dispute that a retaining wall about 90m long, and between 2.5 and 3m high at the rear of nos. 93, 95, 97, 99 and 101 Armstrong Way, Nerang was constructed in this subdivision, and completed some time before 31 December 1995. Council now believes that wall was not soundly built, and that there is a danger it may collapse. [3] On 6 August 2002 Council issued an Enforcement Notice under IPA s 4.3.11 to the appellant, in the following terms: As the builder of a boulder retaining wall situated at Armstrong Way, Nerang (hereinafter referred to as “the wall”) Are advised that the assessing authority (Gold Coast City Council) reasonably believes you have committed the Development Offence of conducting assessable development without approval and that you have conducted operational works in that: You constructed the wall measuring approximately 90m in length and 2.5 to 3.0m in height at the rear of Numbers 93, 95, 97, 99 and 101 on Armstrong Way, Nerang; … on or around August 1995 to June 2002 without obtaining all necessary permits approvals and consents required. -- 2 of 7 -- 3 Council has duly considered all matters associated with the construction of the wall including that Council considers that it may constitute a danger to persons or a risk to public health and has determined that it is appropriate to give this Enforcement Notice. You are hereby required to: (A) Within 14 days lodge for approval all plans relating to the construction of the wall in accordance with the Integrated Planning Act 1997 (Qld). [4] In an appeal filed 26 August 2002 the appellant sought to have the Enforcement Notice set aside. There has been a deal of skirmishing about particulars and disclosure in connection with the Enforcement Notice and, in its particulars, Council asserted that it relied upon IPA s 4.3.1 for its right to issue the Notice. S 4.3.1 provides: 4.3.1 Carrying out assessable development without permit (1) A person must not start assessable development without a development permit for the development. Maximum penalty – 1 665 penalty units. (2) Subsection (1) applies subject to section 4.3.6. … [5] Believing this provision does not apply and, hence, that the Enforcement Notice had been issued unlawfully the appellant brought this interim application for declarations under IPA s 4.1.21 on 31 March 2003. The Council does not dispute this Court’s power to deal with the matter by means of declaratory relief, as that section provides, but continues to assert the Notice is a proper and lawful one and the original appeal should be allowed to go ahead. [6] Part of the dispute concerns the meaning and effect of the word “start” in s 4.3.1(1). The appellant contends it was only intended to apply to assessable development started after the commencement of the Integrated Planning Act, which did not occur until 30 March 1998 and, of course, this wall was completed over two years earlier. For the Council it was argued that, properly construed, the Enforcement Notice procedure is not one which creates new offences but, rather, is intended to provide a mechanism by which a local authority can, without necessarily prosecuting for an offence, cause a person to either refrain from committing an offence or remedy the commission of one; and, by reference to the transitional provisions in IPA, and the former legislation (Local Government (Planning and Environment) Act 1990) (PEA) that the legislation is intended to permit the use of the IPA enforcement provisions even in respect of offences alleged to have been committed before it came into effect. [7] IPA s 4.3.1 refers to the starting of “assessable development” a term defined in Schedule 10 to mean: (a) development specified in schedule 8, part 1; or -- 3 of 7 -- 4 (b) for a planning scheme area – development that is not specified in schedule 8, part 1 but is declared under the planning scheme for the area to be assessable development. [8] The respondent’s town planning scheme is a “transitional planning scheme” for the purposes of IPA1. Under s 6.1.12 assessable development is defined as follows: (a) development specified in schedule 8, part 1; or (b) development, not inconsistent with schedule 8, that: (i) under the repealed Act, would have required an application to be made: (A) for a continuing approval; or (B) under section 4.3(1) of the repealed Act; or (ii) because of an amendment to, or the commencement of, a transitional planning scheme, requires an application for development approval; or (c) development to which paragraph (b)(i) would apply if, under the repealed Act, the development had not been carried out on State land. [9] IPA Chapter 4, Part 3, Division 1 (Development offences) provides, in s 4.3.1A: If a word used in this division, would apart from this section, have the meaning given by schedule 10, the word may, if the context requires, have the meaning given by section 6.1.1. [10] For the appellant it is said ss 4.3.1A and 6.1.1 simply make provision for the identification of assessable development under transitional planning schemes in order to identify what is encompassed by the term after the commencement of IPA. The respondent contended, however, that Chapter 6, Part 1 had the effect that any work for which approval had been given under the PEA was, under those transitional provisions, a “continuing approval” by virtue of IPA s 6.1.23: 6.1.23 Continuing Effect of Approvals Issued Before Commencement … 2 Despite the repeal of the repealed Act, each continuing approval and any conditions attached to a continuing approval have effect as if the approval and the conditions were a development approval in the form of a preliminary approval or development permit, as the case may be. (A “development permit” is a permit which, under IPA, authorises assessable development to occur, subject to any conditions in the permit itself: IPA s 3.1.5(3)). 1 IPA, s 6.1.3 2 IPA, Chapter 6 (Savings and Transitional) -- 4 of 7 -- 5 [11] This submission ignores, however, elements of the factual background which, as was conceded for the Council, have beset its attempts to do something about the dangers it perceives attach to this wall and, also, the terms of the Enforcement Notice itself. Mr Cochrane of Counsel, for the respondent, properly conceded3 that Council simply did not know whether this was a case in which work had been performed without approval; or, an approval had been given but some other steps had not been taken in relation to it (e.g. the provision of engineer’s certificates about retaining walls); or, whether approval had been given but the work had not been properly performed in accordance with it. The Enforcement Notice does not, however, reflect this uncertainty: it speaks of the appellant “…conducting assessable development without approval…”. [12] While some of the historical material adduced in evidence suggests that, if the appellant was guilty of any wrongdoing, it might involve a failure to produce plans and certificates in compliance with conditions forming part of the original development permit, Council has chosen to present the Enforcement Notice here on a basis which unequivocally asserts the performance of assessable development without approval. That assertion extinguishes, I think, Council’s ability to rely upon these transitional provisions because it is the absence of an approval, not the breach of an existing (and ‘continuing’) one which is propounded. I am comforted in that view by the fact Council has itself relied upon the section in its Particulars. [13] The word “start” in the section is clearly used in its ordinary sense – to begin, or commence. On its face, it cannot apply here if the work commenced before the legislation. That is a construction which is consistent with the common law presumption that, in the absence of a clear statement to the contrary, legislation will be presumed not to have retrospective operation4. It is also consonant with s 20C of the Acts Interpretation Act 1954 which expressly provides that if an Act makes an act or omission an offence, it will only be so if committed after the Act commences. [14] In oral argument the respondent contended for a purposive construction but did not go so far as to submit that “start” should be construed as having a meaning like “carry out (whether before or after this Act commences)”. While, at first blush, the use of the word in the section might seem surprising it is not at all clear that the legislature or the drafter made an error. Other parts of the IPA enforcement provisions including, in particular, s 4.3.3 are plainly intended to provide alternative remedies which, all taken together, suggest no statutory hole has been left unplugged in the transition from the PEA to IPA. 3 T p 13, ll 45-50 4 Maxwell v Murphy (1957) 96 CLR 261; Fisher v Hebburn Ltd (1960) 105 CLR 188, at 194 -- 5 of 7 -- 6 [15] It was also contended for the respondent that the IPA transitional provisions, read in conjunction with the enforcement provisions under the PEA5 and the planning scheme of this local authority’s predecessor6 supported the proposition that there was a “continuum” between the former and the present legislation and offences “carried over” but nothing in the provisions referred to provided support for the argument. The previous enforcement provisions under the PEA are in quite different terms, and involve much lower penalties. [16] The Council also submitted that the Enforcement Notice did not involve, and was not intended to be, an actual prosecution of the appellant for an offence7, but that ignores IPA s 4.3.15 which imposes upon the recipient an obligation to comply and, in the event it fails to do so, a maximum penalty of 1,665 penalty units. The procedure was apparently used because, as the Notice shows on its face, the respondent alleges that it holds a reasonable belief the wall may constitute a danger. Council could have chosen, however, to take a less immediate course via a “show cause” notice8, as a preamble to an Enforcement Notice: s 4.3.9. Having taken the more dramatic course I do not think it sits comfortably for Council to suggest the proceeding is not a serious one. [17] The way in which, as I have found, s 4.3.1 ought to be construed might be thought to give rise to a concern that local authorities could be left without remedies against those who undertake development which is assessable under IPA, but without obtaining the necessary approvals. The problem which confronts this local authority is however, it is to be hoped, an unusual one: it simply does not know whether the work had approval, or not. That is a problem of record keeping and therefore capable, it might be thought, of an obvious remedy. Although it is unnecessary to decide the matter it appears other remedies may be available in a case of this kind: for example, by use of proceedings under the former legislation9 (where applicable) or, perhaps, the Building Act 197510. [18] Further, in the present case it is at least possible that what occurred was the second, or third of the scenarios conceded by Counsel for the respondent: namely, that an approval was granted but an associated condition was not performed, or the work itself did not comply with the terms of the approval, or the conditions. As previously noted, IPA s 3.1.5(3) imports the conditions in a permit into the development permit itself. This applies, under IPA, to approvals and conditions granted or imposed under the previous legislation: s 6.1.23(2); and, a contravention of the development approval, including any condition in the approval (and approval includes those granted under the PEA, ss 4.4(5) or 4.7(5)) may be the subject of an Enforcement Notice: IPA s 4.3.3. That may 5 Local Government (Planning and Environment) Act 1990 s 2.23 6 Albert Shire Planning Scheme, February 1995, s 12.26, 17.8 7 T p 11, ll 9-16 8 Chapter 4, Part 3, Division 2 9 Acts Interpretation Act, s 20(2)(c) 10 Part 4 -- 6 of 7 -- 7 provide an alternative course once the Council, as prosecutor, determines the facts and evidence it wishes to propound, and present. [19] It is proper in the present circumstances to grant the declaration the appellant seeks. I will refrain, presently, from determining the appeal itself, to permit the respondent to consider its position and, if necessary, make further submissions. - - - - - -- 7 of 7 --