At our seminar last year, we discussed whether an accused could challenge the lawfulness of an order issued against them in subsequent prosecution proceedings brought against that person for breach of the order in question. Based on case law at the time, it was concluded that where the relevant legislation provides for notice or orders to be challenged via a statutory appeal, a challenge to the validity of the order is not likely to be available in the context of a prosecution.

A recent decision of the District Court of Queensland regarding Gold Coast City Council v Lear & Anor [2016] QDC 215 has upheld that position and found where an enforcement notice is valid on its face, and where the accused chose not to challenge the validity of the notice by way of an appeal, there was no jurisdiction to challenge the notice in criminal proceedings issued for breach of the notice.

This case will also be of interest to councils because it deals with enforcement action taken against the owners of a boundary retaining wall that had failed. The two owners were in dispute and unwilling to cooperate to give access for the rectification works.

Background facts

A timber sleeper retaining wall straddled the boundary between the respondents land at 6 Mitchell Court and 8 Mitchell Court, Carara. It was a timber post and rail wall that varied in height from 1.5 metres to 2.7 metres and it was infested with termites and in danger of collapse. After investigating the problem the Gold Coast City Council (Council) issued identical enforcement notices to the each owner pursuant to the relevant sections of the Building Act 1975 (Queensland) (BA). An enforcement notice given under the Queensland BA is taken to be an enforcement notice given under the Sustainable Planning Act 2009 (Queensland) (SPA). The SPA prescribes an offence for failing to comply with an enforcement notice.

An equivalent notice under Victorian legislation is a building order under the Building Act 1993 (Vic) and s 118 of that Act which provides it is an offence to fail to comply with a building order.

The enforcement notice noted, amongst other things, Council reasonably believed the structure on the property was dangerous in that the timber sleeper retaining wall was in a dilapidated condition, unfit for use and dangerous because it was severely infested with termites and there was a high probability it would collapse suddenly and may cause injury to a person or damage to property.

The enforcement notice required the recipients to, amongst other things, immediately fence off the retaining wall, obtain development approval and engage a registered builder within 20 business days after obtaining the development approval to reconstruct the retaining wall. The enforcement notice noted the recipients had a right to appeal against the notice to the Building and Development Committee within five business days after the notice was given.

It had become clear during the course of the evidence given at the hearing that neither the respondents nor their neighbour could unilaterally replace the retaining wall without trespassing on the property of the other party. It was noted ‘in circumstances where there was one structure which needed replacing which was partly on the land of each of the parties, a better approach would have been to issue one enforcement notice addressed to both of them.’ The Magistrate concluded since the notice referred to the whole of the wall structure – and not only that part of the structure owned by the defendants, and in order to comply with the notice, the accused must go on to their neighbour’s land to find a solution – Council could not enforce compliance. The Magistrate therefore upheld an application by the respondents that there was no case to answer.

Decision on appeal

On appeal, the District Court Judge held the Magistrate had correctly found the enforcement notice to be defective since it directed respondents to unlawfully carry out work on the land of their neighbour. It said:

‘In an attempt to overcome the problems identified by the magistrate in her decision it is submitted that each of the enforcement notices should be read down as only referring to that part of the retaining wall on the property of the recipient of the notice because each is couched in terms that the appellant ‘reasonably believed that a structure on the subject property is dangerous’. In my view that is not a sufficient answer to the defective approach identified by the magistrate in circumstances where there was no attempt to identify what part of the retaining wall was relevant to each enforcement notice and where each of the recipients was required to do exactly the same things.’

However, the Court went on to consider whether the lawfulness of the enforcement notice was capable of being challenged before the Magistrate.

The Court held that while the notice was not lawful, it was valid on its face and, in circumstances where the respondents did not challenge it by way of appeal, there was no jurisdiction to challenge it before the Magistrate. The District Court concluded:

‘… The enforcement notice was comprehensive and valid on its face. In circumstances where the appellant reasonably believed the retaining wall was dangerous it is entirely appropriate that a challenge to the enforcement notice be started promptly by an appeal to the Building and Development Committee within the five business day period which applied. It is appropriate that a challenge to an enforcement notice take place in such a context given the technical nature of the surrounding issues. An appeal to the Planning and Environment Court lies from such a decision. An enforcement notice issued for an improper purpose could also be challenged pursuant to the JRA. As noted by Lord Hoffman, criminal proceedings for failing to comply with an enforcement notice are part of the mechanism for securing the enforcement of planning controls in the public interest. It is not in the public interest that the recipient of an enforcement notice be permitted to do nothing in response to it and challenge its validity much later, when the offence of failing to comply with the enforcement notice finally becomes before the Magistrates’ Court. The legislative regimes provides more than ample redress to the recipient of an enforcement notice who wishes to challenge it. The legislature has prescribed the only challenges available in unambiguous terms without recourse to a privative clause. I therefore conclude that the lawfulness of the enforcement notice was not capable of being challenged before the magistrate.’ (emphasis added)

What does this decision mean?

If an order is invalid on its face in that it does not comply with the legislation, it can be challenged by an accused. For example if the order was not issued to the correct party or was issued by someone who was not authorised to make the order, then those matters could be raised as a defence in any prosecution.

However, in other circumstances, where the relevant legislation provides for a challenge to orders via a statutory appeal, the more likely outcome is a defence to the validity of the order will not be available in the context of a prosecution. The only issues necessary to be proved before the Magistrates’ Court would be the accused has been issued with an enforcement notice (or building order as the case may be) and has failed to comply with it.

Enforcement action in relation to a boundary fence/wall?

This case is interesting not just because it considers enforcement of notices and orders. The scenario involving a dangerous retaining structure built across a property boundary is one we have advised Victorian councils on a number of times.

The District Court of Queensland found the enforcement notice to be defective because its recipient could not comply with it without trespassing on the neighbour’s property. The District Court did not proffer a view as to how to address such a situation other than to note the Magistrate’s comments that a better approach would have been to issue one enforcement notice addressed to both parties. Presumably, the Magistrate considered that a single enforcement notice would give permission for each owner to enter the land of the other. Ultimately the question of whether an enforcement notice can overcome allegations of trespass was not resolved in this case.

In our experience, under the Building Act 1993, if one or both owners of a boundary structure will not permit access to their property by the other owner, this can result in an inability to comply with a building order. The strategy to resolve these kinds of cases will always depend on the specific facts but it may be that Council needs to undertake the works under its powers in s 121 or commence proceedings seeking orders for access between the owners under s 253 of the Building Act.