Conquest & Anor v Bundaberg Regional Council

[2016] QCA 203

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Environment and Planning Law
2. › Planning Law
3. › Enforcement notices
4. › Validity of enforcement notice
5. › Whether commission of development offence is condition of validity
6. › Whether element of offence of non-compliance
7. › Integrated Planning Act 1997 (Qld), ss 4.3.11, 4.3.15
1. Environment and Planning Law
2. › Planning Law
3. › Enforcement notices
4. › Offences relating to enforcement notices
5. › Elements of offence under s 4.3.15
6. › Whether reasonable belief sufficient without proof of underlying offence
7. › Integrated Planning Act 1997 (Qld), ss 4.3.1, 4.3.11, 4.3.12, 4.3.15
1. Appeal
2. › Leave to appeal
3. › Criminal appeals from District Court appellate jurisdiction
4. › New points not raised below
5. › Whether leave should be granted to raise new contentions
6. › District Court of Queensland Act 1967 (Qld), ss 118, 119
1. Statutory Interpretation
2. › Construction of planning legislation
3. › Definitions of 'building work' and 'operational work'
4. › Whether excavation and filling was 'for, or incidental to' building
5. › Integrated Planning Act 1997 (Qld)

Quick Take

An offence under s 4.3.15(1) of the Integrated Planning Act 1997 (Qld) for failing to comply with an enforcement notice does not require proof that the recipient actually committed the underlying development offence; it is sufficient that the assessing authority held a reasonable belief under s 4.3.11(1). Recipients of enforcement notices who wish to challenge the underlying basis of the notice must do so by appeal to the Planning and Environment Court or by declaratory proceedings, not as a defence to prosecution for non-compliance. The question whether collateral challenge to enforcement notice validity is available in prosecution proceedings was left open.