Worldwide Church of God (Australia) Limited v Council of the City of Gold Coast

[2003] QPEC 15

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Worldwide Church of God (Australia) Limited v. Council of the City of Gold Coast [2003] QPEC 015

PARTIES:

WORLDWIDE CHURCH OF GOD (AUSTRALIA) LIMITED (Appellant)

v.

COUNCIL OF THE CITY OF GOLD COAST (Respondent)

FILE NO/S:

728 of 2003

DIVISION:

Planning and Environment Court

PROCEEDING:

Preliminary Point

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

17 March 2003

JUDGE:

Quirk DCJ

ORDER:

This court has jurisdiction to determine the appeal

CATCHWORDS:

BUILDING CONTROL AND TOWN PLANNING – Town planning – Enforcement notice issued under the Building Act – Appeal against enforcement notice - Whether court has jurisdiction to hear the appeal

ss 22 & 24 Building Act
ss.4.1.2(2), 4.1.32, 4.2.7 4.2.13 Integrated Planning Act

Cole v. Director General of Department of Youth & Community Services (1987) 7 NSWLR 541

COUNSEL:

Mr P Lyons QC and Mr J Houston for the Appellant
Mr R Litster for the Respondent

SOLICITORS:

Phillips Fox for the Appellant

McDonald Balanda & Associates for the Respondent

1. This case raises a short but interesting point.  The appellant is the recipient of an Enforcement Notice given under the Building Act.  It has lodged an appeal against this Notice in the Planning and Environment Court.  The respondent counsel disputes the court’s jurisdiction to entertain the appeal.  A ruling is sought whether such jurisdiction exists. 

1. Enforcement Notices are provided for in s.22 of the Building Act. The section, after specifying circumstances in which such notices may issue provides in sub-section (6):

“Any Enforcement Notice given under this section is taken to be an enforcement notice given under the Integrated Planning Act 1997 s.4.3.11.”

1. Two opportunities for appeal against such a Notice are provided for by the Integrated Planning Act. A right of appeal to the court is given expressly by s.4.1.32 and an alternatively right of appeal to a Tribunal is given by s.4.2.13. This is in line with ss. 4.1.2(2) and 4.2.7 which allows a Tribunal to deal with certain prescribed matters notwithstanding the court’s generally exclusive jurisdiction over matters entrusted to it by the Act.

1. The difference in the position of the parties before me has arisen because of s.24 of the Building Act which provides:

“24.  Appeals against enforcement notices
(1) A person who is given an enforcement notice under section 22 may appeal to a tribunal as if the appeal were an appeal under the Integrated Planning Act 1997.

(2)  The appeal must be started within –

(a)if the notice is given in relation to a dangerous building or structure – 5 business days;  or

(b)if the notice is given for any other purpose – 20 business days after the enforcement notice is given to the person.”

1. The respondent’s contention is that this section, because of its specific reference to the Tribunal should be seen as an exhaustive statement of the remedies available to any recipient of such a notice, and should be understood to exclude the right of appeal to the court given by s.4.1.32 of the Integrated Planning Act 1997.

1. This, I believe, is too narrow a view. The section, if read carefully, repeats what is found is s.4.2.13 of the Integrated Planning Act 1997 with the qualification that, where the enforcement notice is given in relation to a dangerous building or structure, the time for starting an appeal is reduced from 20 to 5 business days.

1. To read the section as taking away the benefits of the right of appeal given by s.4.1.32 of the Integrated Planning Act 1997 is, in my view, to go too far.  Such benefits are not insubstantial, one being the opportunity for legal representation (s.4.30(2)).  It is not at all inconceivable that an appeal against an enforcement notice might involve substantial questions of interpretation.  The deprivation of such a benefit is not sufficiently answered by a right of appeal from the Tribunal to this court on a matter of law. 

1. Had the intention of the legislature been to make the jurisdiction of the Tribunal in respect of appeals against enforcement notices issued under the Building Act exclusive, it would have been a simple matter to indicate this clearly in either of the Acts.  It has not chosen to do so, even though in the Integrated Planning Act 1997, the opportunity for a Tribunal to entertain such appeals is specifically mentioned.

1. I believe that there is force in the submission of the senior counsel for the appellant that we are here dealing with provisions with remedial operation.  Such provisions should not be read down in the absence of a clear legislative indication to the contrary.  (Cole v. Director General of Department of Youth and Community Services (1987) 7 NSWLR 541 at 543).

1. For these reasons I rule that this court has jurisdiction to determine the appeal and I order accordingly.