Gold Coast City Council v Lear

DISTRICT COURT OF QUEENSLAND

CITATION:

Gold Coast City Council v Lear & Anor [2016] QDC 215

PARTIES:

GOLD COAST CITY COUNCIL

(appellant)

v

DAVID JOHN LEAR

(first respondent)

and

JOYCE EVELYN HUMPHREYS

(second respondent)

FILE NO/S:

317 of 2015

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at ­­­­Southport

DELIVERED ON:

30 August 2016

DELIVERED AT:

Brisbane

HEARING DATE:

25 July 2016 and 17 August 2016

JUDGE:

Everson DCJ

ORDER:

1.   Allow the appeal;

2.   Matter remitted to the magistrate for determination according to law.  

CATCHWORDS:

APPEAL – where respondents failed to comply with an Enforcement Notice – where the Magistrate dismissed the complaint on the basis that there was no case to answer - where appellant seeks an appeal against the order of the Magistrate – whether there was jurisdiction to challenge the Enforcement Notice before the Magistrate.

Coco v R (1994) 179 CLR 427

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

Gray v Woollahra Municipal Council [2004] NSWSC 112

Howe & Anor v Harris Unreported, District Court Maroochydore, 13 May 2005

Krulow v Glamorgan Spring Bay Council (2013) 23 Tas R 264

R v Wicks [1998] AC 92

Building Act 1975, 248, 249, 250,

Judicial Review Act 1991

Justices Act 1886, 222

Sustainable Planning Act 2009, 594, 597

COUNSEL:

M Hinson QC with K Wylie for the appellant

D Kelly for the respondents

SOLICITORS:

McCullough Robertson Lawyers for the appellant

Frampton Legal for the respondents

Introduction

1. This is an appeal pursuant to s 222 of the Justices Act 1886 against the order of a magistrate sitting at Southport made on 22 October 2015 that the respondents had no case to answer in respect of the prosecution brought by the appellant against the respondents for failing to comply with an enforcement notice (“the decision”).

The relevant legislative framework

1. Pursuant to s 248 of the Building Act 1975 (“BA”): -

“(1) A local government may give a notice (an enforcement notice) to the owner of a building, structure or building work if the local government reasonably believes the building, structure or building work –

…

(b)is dangerous”

1. An enforcement notice given under this section is taken to be an enforcement notice given under the Sustainable Planning Act 2009 (“SPA”).[1]

   [1]BA, s 248(5).

1. Thereafter s 249 of the BA lists the specific requirements of enforcement notices. It is in the following terms:

“(1) Without limiting specific requirements an enforcement notice may impose, an enforcement notice may require a person to do any of the following –

(a)       to apply for a development permit;

(b)to do, or not to do, another act to ensure building work complies with the approval of the  local government given before the commencement of this section;

(c)        to repair or rectify the building or structure;

(d)to secure the building or structure (whether by a system of supports or in another way);

(e)to fence off the building or structure to protect persons;

(f)to cleanse, purify and disinfect the building or…