Conquest v Bundaberg Regional Council - [2016] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:

Conquest & Anor v Bundaberg Regional Council [2016] QCA 203

PARTIES:

In Appeal No 236 of 2014:

CONQUEST, Ann

(applicant)v
BUNDABERG REGIONAL COUNCIL
(respondent)

In Appeal No 237 of 2014:

CONQUEST, Robert John

(applicant)v
BUNDABERG REGIONAL COUNCIL
(respondent)

FILE NO/S:

CA No 236 of 2014
CA No 237 of 2014
DC No 49 of 2012
DC No 48 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2014] QDC 166

DELIVERED ON:

19 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2016

JUDGES:

Fraser and Philip McMurdo JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to appeal is refused.

2. Leave granted to the parties to make submissions about costs of the application.

CATCHWORDS:

ENVIRONMENT AND RESOURCES – PLANNING LAW – APPEALS, OFFENCES AND ENFORCEMENT – ENFORCEMENT NOTICES – SPECIFIC REQUIREMENTS OF ENFORCEMENT NOTICES – where the applicants were found guilty of an offence against s 4.3.15 of the Integrated Planning Act 1997 (“the Act”) for failing to comply with an enforcement notice – where the District Court dismissed their appeals – where the applicants apply for leave to appeal under s 118 of the District Court of Queensland Act 1967 (“the District Court Act”) – where the applicants contend that it is a condition of the validity of an enforcement notice that the person to whom the enforcement notice is given has committed a development offence – where the applicants contend that they should be acquitted of the offences because it was not proved beyond reasonable doubt that the relevant works on the property were “building works” rather than “operational works” – where the respondent submitted that the elements of the offence against s 4.3.15 of the Act were that a person was given an enforcement notice and did not comply with that notice – whether it is a condition of validity of an enforcement notice, and an element of the offence against s 4.3.15 of the Act, that the person to whom the notice is given had committed a development offence – whether the work carried out by the applicants amounted to “building work” or “operational work” under the Act

ENVIRONMENT AND RESOURCES – PLANNING LAW – APPEALS, OFFENCES AND ENFORCEMENT – ENFORCEMENT NOTICES – OFFENCES RELATING TO ENFORCEMENT NOTICES – where the applicants were found guilty of an offence against s 4.3.15 of the Act for failing to comply with an enforcement notice – where the District Court dismissed their appeals – where the applicants apply for leave to appeal under s 118 of the District Court Act– where the applicants raised a new point of contention – whether leave to raise new contention is granted – whether the Court’s jurisdiction is limited by ss 118 and 119 of the District Court Act

District Court of Queensland…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCA 203
Decision Date: 19 August 2016

CaseChat Overview and Summary

The case of Conquest v Bundaberg Regional Council involved the applicants, who were found guilty of an offence under section 4.3.15 of the Integrated Planning Act 1997 for failing to comply with an enforcement notice. The applicants appealed to the District Court, which dismissed their appeal, leading to an application for leave to appeal to a higher court under section 118 of the District Court of Queensland Act 1967. The applicants argued that for an enforcement notice to be valid, the person to whom it is given must have committed a development offence. They also contended that they should be acquitted of the offences because it was not proven beyond reasonable doubt that the works on their property constituted "building works" rather than "operational works".

The court was required to determine whether the validity of an enforcement notice and the elements of the offence under section 4.3.15 of the Act depend on the person having committed a development offence. Additionally, the court needed to clarify whether the work carried out by the applicants constituted "building work" or "operational work" under the Act. The applicants further sought leave to raise a new point of contention, which was not previously argued in the District Court, regarding the jurisdiction of the court under sections 118 and 119 of the District Court Act.

The court dismissed the application for leave to appeal, finding that the applicants had not demonstrated that the appeal had a reasonable chance of success. It was held that it was not a condition of the validity of an enforcement notice, nor an element of the offence, that the person to whom the notice is given had committed a development offence. The court also concluded that the work carried out by the applicants amounted to "building work" under the Act. The applicants' request to raise a new point of contention was denied as the court's jurisdiction in this matter was limited by the statutory provisions mentioned.

In its orders, the court refused the application for leave to appeal but granted leave to the parties to make submissions about the costs of the application.

Orders

Orders of the court

1. Application for leave to appeal is refused.

2. Leave granted to the parties to make submissions about costs of the application.

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

Full text does not contain this section.

CITATION:	Conquest & Anor v Bundaberg Regional Council [2016] QCA 203
PARTIES:	In Appeal No 236 of 2014: CONQUEST, Ann (applicant)v BUNDABERG REGIONAL COUNCIL (respondent) In Appeal No 237 of 2014: CONQUEST, Robert John (applicant)v BUNDABERG REGIONAL COUNCIL (respondent)
FILE NO/S:	CA No 236 of 2014 CA No 237 of 2014 DC No 49 of 2012 DC No 48 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane – [2014] QDC 166
DELIVERED ON:	19 August 2016
DELIVERED AT:	Brisbane
HEARING DATE:	4 February 2016
JUDGES:	Fraser and Philip McMurdo JJA and Daubney J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to appeal is refused. 2. Leave granted to the parties to make submissions about costs of the application.
CATCHWORDS:	ENVIRONMENT AND RESOURCES – PLANNING LAW – APPEALS, OFFENCES AND ENFORCEMENT – ENFORCEMENT NOTICES – SPECIFIC REQUIREMENTS OF ENFORCEMENT NOTICES – where the applicants were found guilty of an offence against s 4.3.15 of the Integrated Planning Act 1997 (“the Act”) for failing to comply with an enforcement notice – where the District Court dismissed their appeals – where the applicants apply for leave to appeal under s 118 of the District Court of Queensland Act 1967 (“the District Court Act”) – where the applicants contend that it is a condition of the validity of an enforcement notice that the person to whom the enforcement notice is given has committed a development offence – where the applicants contend that they should be acquitted of the offences because it was not proved beyond reasonable doubt that the relevant works on the property were “building works” rather than “operational works” – where the respondent submitted that the elements of the offence against s 4.3.15 of the Act were that a person was given an enforcement notice and did not comply with that notice – whether it is a condition of validity of an enforcement notice, and an element of the offence against s 4.3.15 of the Act, that the person to whom the notice is given had committed a development offence – whether the work carried out by the applicants amounted to “building work” or “operational work” under the Act ENVIRONMENT AND RESOURCES – PLANNING LAW – APPEALS, OFFENCES AND ENFORCEMENT – ENFORCEMENT NOTICES – OFFENCES RELATING TO ENFORCEMENT NOTICES – where the applicants were found guilty of an offence against s 4.3.15 of the Act for failing to comply with an enforcement notice – where the District Court dismissed their appeals – where the applicants apply for leave to appeal under s 118 of the District Court Act– where the applicants raised a new point of contention – whether leave to raise new contention is granted – whether the Court’s jurisdiction is limited by ss 118 and 119 of the District Court Act District Court of Queensland…