PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: Benfer v Sunshine Coast Regional Council [2019] QPEC 6 PARTIES: RODNEY DAVID BENFER
(appellant) v
SUNSHINE COAST REGIONAL COUNCIL
(respondent) AND
SUNSHINE COAST REGIONAL COUNCIL
(applicant) v
RODNEY DAVID BENFER
(respondent)
FILE NO/S: 3967 of 2017 and 3339 of 2018 DIVISION: Planning and Environment PROCEEDING: Appeal and Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane
DELIVERED ON: 14 March 2019 DELIVERED AT: Brisbane HEARING DATE: 10 September 2018 and 30 January 2019 JUDGE: Kefford DCJ ORDER: I order:
(a) Appeal No. 3967 of 2017 is allowed and the enforcement notice the subject of the appeal is set aside; and
(b) Application No. 3339 of 2018 is dismissed.
CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – APPEAL
AGAINST ENFORCEMENT NOTICE – where the Council gave the appellant an enforcement notice alleging the commission of a development offence under s 163 of the Planning Act 2016 – where the nature of the alleged offence was the importation of approximately 10 000 cubic metres of fill without a development approval – where the land is located within an Flood and Inundation Area under the planning scheme – where the enforcement notice did not refer
to the type of development alleged to have been carried out, namely operational works – where the enforcement notice did not refer to provisions of the planning scheme triggering the need for a development permit – where the enforcement notice did not specify the dates, times or period of times on which the alleged development offence was committed – where the enforcement notice gave approximately three months to remove 10 000 cubic metres of fill and reinstate the land to natural ground level – whether the enforcement notice failed to comply with the obligation to state the nature of the alleged offence – whether it was unreasonable to require the appellant to remove the fill – whether the timeframes for the removal of the fill were too short having regard to the volume of fill
PLANNING AND ENVIRONMENT – APPLICATION
FOR ENFORCEMENT ORDERS – where the Council applies for enforcement orders requiring the removal of 10 000 cubic metres of fill – where the Council alleges the
commission of a development offence under the Sustainable Planning Act 2009 and a development offence under the Planning Act 2016 – whether the Court has jurisdiction to make an enforcement order about an offence under the Sustainable Planning Act 2009 – whether the alleged development offences have been committed – whether, in the exercise of the court’s discretion, the enforcement order should be made
LEGISLATION: Acts Interpretation Act 1954 (Qld), s 20, s 20C
Local Government Electoral (Transparency and Accountability in Local Government) and Other Legislation Amendment Act 2017 (Qld), s 78
Planning Act 2016 (Qld), s 29, s 44, s 46, s 88, s 161, s 163,
s 167, s 168, s 180, s 229, s 310, s 311, s 312
Planning and Environment Court Act 2016 (Qld), s 43, s 45, s 47
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- Case
- [2019] QPEC 6
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the enforcement notice sufficiently detailed the nature of the alleged offence, whether it was reasonable to demand the removal of the fill, and if the timeframe provided for such removal was appropriate given the volume of fill involved. The Council argued that it had jurisdiction to grant the relief it sought despite the repeal of the Sustainable Planning Act 2009, citing section 20 of the Acts Interpretation Act 1954. However, the court found that the saving and transitional provisions of the Planning Act 2016 indicated a contrary intention that displaced the operation of section 20 of the Acts Interpretation Act 1954, thus precluding the Council from starting a proceeding for enforcement orders post-repeal.
The court ruled that the enforcement notice failed to adequately specify the nature of the alleged offence, the relevant provisions of the planning scheme, and the specific dates and times of the alleged offence. Additionally, the court determined that the timeframe for removing the fill was unreasonable given its volume. Consequently, the appeal was allowed, and the enforcement notice was set aside. The Council's application for enforcement orders was dismissed.
Orders
Orders of the court
I order:
(a) Appeal No. 3967 of 2017 is allowed and the enforcement notice the subject of the appeal is set aside; and
(b) Application No. 3339 of 2018 is dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In oral submissions, the Council advanced further argument in support of its submission that the court has jurisdiction to grant the relief it seeks. It sought to rely on s 20 of the Acts Interpretation Act 1954, which states:“20 Saving of operation of repealed Act etc(1)In this section—Act includes a provision of an Act.repeal includes expiry.(2)The repeal or amendment of an Act does not—(a)revive anything not in force or existing at the time the repeal or amendment takes effect; or(b)affect the previous operation of the Act or anything suffered, done or begun under the Act; or(c)affect a right, privilege or liability acquired, accrued or incurred under the Act; or(d)affect a penalty incurred in relation to an offence arising under the Act; or(e)affect an investigation, proceeding or remedy in relation to a right, privilege, liability or penalty mentioned in paragraph (c) or (d).(3)The investigation, proceeding or remedy may be started, continued or completed, and the right, privilege or liability may be enforced and the penalty imposed, as if the repeal or amendment had not happened.(4)Without limiting subsections (2) and (3), the repeal or amendment of an Act does not affect—(a)the proof of anything that has happened; or(b)any right, privilege or liability saved by the operation of the Act; or(c)any repeal or amendment made by the Act; or(d)any savings, transitional or validating effect of the Act.(5)This section is in addition to, and does not limit, sections 19 and 20A, or any provision of the law by which the repeal or amendment is made.”(emphasis added) The Council submits that the court has power to make an enforcement order notwithstanding the repeal of the Sustainable Planning Act 2009. It submits that, pursuant to s 20 of the Acts Interpretation Act 1954, the repeal does not affect the liability or penalty incurred by the commission of the offence under s 578, nor a In order to establish the court has power to make the enforcement orders sought, the Council would need to establish that the repeal did not affect both s 578 of the Sustainable Planning Act 2009 and s 601 of the Sustainable Planning Act 2009. Section 601 conferred a power on the court to make enforcement orders to remedy or restrain the commission of a development offence under that Act. I do not accept that the power to start proceedings under s 601 of the Sustainable Planning Act 2009 is saved by application of s 20 of the Acts Interpretation Act 1954. Pursuant to s 4 of the Acts Interpretation Act 1954, the application of that Act may be displaced, wholly or partly, by a contrary intention appearing in any Act. In my view, the saving and transitional provisions of the Planning Act 2016 indicate a contrary intention sufficient to displace the operation of s 20 of the Acts Interpretation Act 1954, at least insofar as it would permit a proceeding for enforcement orders to be started despite the repeal of s 601 of the Sustainable Planning Act 2009.20 The contrary intention is supported by three provisions, namely s 310, s 311 and s 312 of the Planning Act 2016.