Warry v Brisbane City Council Compliance and Regulation Services

[2014] QPEC 46

[2014] QPEC 46

PLANNING AND ENVIRONMENT COURT

JUDGE RACKEMANN

P & E No. 1701 of 2014

IAN DOUGLAS WARRY and ANOTHER  Appellants

and

BRISBANE CITY COUNCIL COMPLIANCE               Respondent
AND REGULATION SERVICES

BRISBANE

10.46 AM, FRIDAY, 15 AUGUST 2014

JUDGMENT

CATCHWORDS: 

 PLANNING AND ENVIRONMENT – Procedure – whether interim enforcement order can be sought by an application in pending proceeding by the respondent to an appeal against the issue of an enforcement notice

SOLICITORS:

No appearance for the appellant

L Godfrey, Brisbane City Legal Practice for the respondent

HIS HONOUR: The respondent in this appeal has sought to make an application in a pending proceeding. The pending proceeding is an appeal against the issue of an enforcement notice. The application seeks relief under section 603 of the Sustainable Planning Act. That section relates to making an interim enforcement order. It provides, relevantly, that the Court may make an interim enforcement order pending a decision of “the proceeding” if the Court is satisfied it would be appropriate to make the order.

Section 603 is in division 5 of part 3 of the Act, which deals with enforcement orders by the Court. Section 601 permits a person to bring a proceeding in the Court, amongst other things:

(a)     for an order to remedy or restrain the commission of a development offence (an enforcement order); or

(b)   if a person has brought a proceeding under paragraph (a) and the Court has not decided the proceeding – for an order under section 603 (an interim enforcement order).

The making of enforcement orders is dealt with in section 604. 

It is plain that any interim enforcement order is properly sought by a person who has brought a proceeding for an enforcement order.  The applicant for relief in this case is not such a person.  Rather, it is the respondent to an appeal against the issue of an enforcement notice.  Accordingly, the application has not been made in the correct manner, and for that reason the application is dismissed.