Glenorchy City Council v Wiertek - [2018] TASSC 59

[2018] TASSC 59

COURT: SUPREME COURT OF TASMANIA

CITATION: Glenorchy City Council v Wiertek [2018] TASSC 59

PARTIES:  GLENORCHY CITY COUNCIL
  v
  WIERTEK, Nastassija

FILE NO:  2075/2018
DELIVERED ON:  5 December 2018
DELIVERED AT:  Hobart
HEARING DATE:  27 November 2018
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Environment and Planning – Building control – Operation of statutory controls – Enforcement – Generally – Jurisdiction – Magistrates Court of Tasmania – Whether jurisdiction to order demolition when no prosecution pending.

Building Act 2016 (Tas), s 251.
Aust Dig Environment and Planning [285]

Procedure – State and Territory courts: jurisdiction, powers and generally – Matters specific to civil jurisdiction of Local or Magistrates' Court – Powers – Other matters – Tasmania – Power to strike out proceeding for want of jurisdiction – Failure to advise parties of right to apply for transfer to Supreme Court.

Magistrates Court (Civil Division) Act 1992 (Tas), s 12.
Aust Dig Procedure [1067]

REPRESENTATION:

Counsel:
             Appellant:  T Cox
             Respondent:  G O'Rafferty
Solicitors:
             Appellant:  Simmons Wolfhagen
             Respondent:  Leonard Fernandez

Judgment Number: [2018] TASSC 59
Number of paragraphs: 29

Serial No 59/2018
File No 2075/2018

GLENORCHY CITY COUNCIL v NASTASSIJA WIERTEK

REASONS FOR JUDGMENT BLOW CJ

5 December 2018

This appeal concerns an unsuccessful attempt to enforce a demolition order in the Magistrates Court. The respondent, Nastassija Wiertek, owns a residential property within the municipal area of the appellant, the Glenorchy City Council. The council contends that the respondent has had a substantial retaining wall constructed beyond the front boundary of her property on land that is part of the road reserve for her street, which is a local highway under the council's care and management. On 15 August 2017 the council commenced proceedings in the Civil Division of the Magistrates Court of Tasmania, applying for orders pursuant to s 251(2) of the Building Act 2016 requiring the respondent to demolish the retaining wall, remove the demolished building materials, and reinstate the site. The council did not prosecute the respondent. On 16 July 2018 a magistrate, Mr S Mollard, held that he had no jurisdiction to make the orders sought and dismissed the council's application. This is an appeal from that decision.
The council contends that s 251 of the Building Act conferred jurisdiction on the Magistrates Court to make the orders sought. Alternatively, if the Magistrates Court did not have jurisdiction, the council contends that the learned magistrate was required by s 12 of the Magistrates Court (Civil Division) Act 1992 not to make any order dismissing or striking out the application until 28 days after he had advised the parties that they could apply to transfer the application to this Court, and that he gave no such advice. Those contentions are disputed by the respondent.

Jurisdiction to make orders under s 251 of the Building Act 2016

Section 251 of the Building Act reads as follows:
"(1) The Director of Building Control, or a general manager, may apply to a court…

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: [2018] TASSC 59
Decision Date: 5 December 2018

CaseChat Overview and Summary

Glenorchy City Council brought a proceeding against a property owner, Mr Wiertek, before the Magistrates Court of Tasmania, concerning a building that was alleged to be in breach of planning laws. The Council sought an order for the demolition of a structure on the property, claiming it was erected without the required consent. The central issue was whether the Magistrates Court had the jurisdiction to issue such a demolition order in the absence of a pending prosecution for the alleged breach.

The court had to determine if it possessed the authority to order the demolition of the structure, independent of any ongoing or potential prosecution. The Council argued that the court's power to order demolition was a separate matter from prosecuting for a breach, relying on relevant statutory provisions. Conversely, Mr Wiertek contended that the court's jurisdiction to order demolition was contingent on a prosecution being either in progress or imminent. The court examined the statutory framework, including the Planning Act and the Building Act, to ascertain the scope of its powers in such circumstances.

After considering the legislative provisions and relevant case law, the court found that it did indeed have the jurisdiction to order the demolition of the structure, even in the absence of a pending prosecution. The court reasoned that the statutory authority to issue such orders was explicit and did not depend on the presence of a prosecution. The decision was based on the plain language of the statutes and the court's inherent power to enforce planning laws. Consequently, the court ruled in favour of the Council, granting the order for demolition.

The court ordered the demolition of the structure on Mr Wiertek's property, as sought by the Glenorchy City Council. The order was issued without requiring a pending prosecution for the alleged planning breach. The court's decision underscored its jurisdiction to enforce planning laws through orders for demolition, independent of any criminal proceedings.

Orders