Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2015
  4. Newton v Shepherd; Dreghorn v Shepherd - [2015] QDC 331

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Newton v Shepherd; Dreghorn v Shepherd[2015] QDC 331

Newton v Shepherd; Dreghorn v Shepherd[2015] QDC 331

DISTRICT COURT OF QUEENSLAND

CITATION:

Newton v Shepherd; Dreghorn v Shepherd [2015] QDC 331

PARTIES:

Ashley D NEWTON

AND

Craig SHEPHERD

FILE NO:

DC 25/14

PARTIES:

Melissa Rose-Ann DREGHORN

AND

Craig SHEPHERD

FILE NO:

DC 26/14

PARTIES:

Mark Anthony James DREGHORN

AND

Craig SHEPHERD

FILE NO:

DC 27/14

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Mackay

DELIVERED ON:

18 December 2015

DELIVERED AT:

Cairns

HEARING DATE:

9 March 2015

JUDGE:

Harrison DCJ

ORDER:

Appeal Dismissed

CATCHWORDS:

Sustainable Planning Act 2009 (QLD) – Where commission of a development offence alleged – Where enforcement notices issued – Where enforcement notices not complied with – Where complaints and summonses issued alleging failure to comply with notices – Whether complaints and summonses issued outside limitation period – Whether the offence charged was a continuous offence or a “once and for all” offence

Environmental Protection Authority v Alkem Drums Pty Ltd (2000) 113 LGERA 130

Montrose Creek Pty Ltd & Ors v Brisbane City Council [2012] QPEC 65

Sloggett v Adams [1953] 70 WN (NSW) 206

Justices Act 1886 (Qld) s 222

Sustainable Planning Act 2009 (Qld) s 3, 4, 5, 230, 240, 243, 245, 578, 590, 592, 593, 594, 610

COUNSEL:

P Cullinane for each of the applicants

A Skoien for the respondent

SOLICITORS:

Macrossan & Amiet for each of the applicants

SB Wright, Wright & Condie for the respondent

Introduction

  1. [1]
    These are appeals pursuant to section 222 of the Justices Act 1886 (Qld) against orders made in the Magistrates Court at Mackay on 5 March 2014.
  1. [2]
    Each of the three applicants were originally charged on complaint and summons in the Magistrates Court at Mackay on 26 June 2013 for alleged breaches of section 594(1) of the Sustainable Planning Act 2009 (Qld) (“the SPA”).  The charges against each of the three applicants were identical and the matters were listed for conjoint hearing on 12 February 2014.
  1. [3]
    On 12 February 2014 the applicants argued that the complaint and summons in each case was statute barred because it was issued outside of the time prescribed by section 610 of the SPA.
  1. [4]
    Preliminary argument was heard that day and, on 5 March 2014, the learned Magistrate found that the offence was a continuing offence and ordered that the complaints could proceed to hearing.

History of the Matter

  1. [5]
    The applicant are the owners of a property situated at Lot 2 Rutland Road, Kuttabul (“the property”). On 2 September 2011 each applicant received an enforcement notice from the Mackay Regional Council in the following terms:

TAKE NOTICE THAT:

You     [Name of the Applicant]

of     L2 Rutland Road Kuttabul

as     Owner

of certain premises described as  Lot 2 Plan RP 900267

situated at L2 Rutland Road Kuttabul, in the State of Queensland (“the premises”)

are advised that the assessing authority, Mackay Regional Council (Council), reasonably believes you have committed or are committing the development offence contravening Section 578(1) of the Sustainable Planning Act 2009 (“SPA”), in that:

  1. Following a customer request received the site was inspected on the 4 January 2010 and identified building works occurring on Lot 2 RP 900267 described as L2 Rutlands Road Kuttabul.
  1. A search of Councils systems indicated no development approval was issued.
  1. On 19 January 2010 a second site inspection occurred out at Lot 2 Rutlands Road Kuttabul, which revealed the structure to be under construction. The structure was fully framed and no internal linings were in place and the premises were guarded by a large dog.
  1. Accordingly on the 9 February 2010 a Show Cause Notice was issued to the three property owners.
  1. Following a response to the Show Cause Notice a reply, acknowledging the response was issued on the 15 March 2010, advising to stop construction, until approval was given.
  1. On the 18 August 2010 correspondence from a property owner was received which advised steps to have the work approved were underway and soil tests to be taken for the process.
  1. A search of Councils systems on the 8 December 2010 failed to indicate any development permits for the works.
  1. On the 2 February 2011 the site was inspected whereby it was determined that the structure was completed and under habitation.
  1. On the 3 February 2011 a Penalty Infringement Notice was issued to the property owners.
  1. On the 3 February 2011 an Enforcement Notice was issued to the property owners.
  1. On the 21 June 2011 the property owner was verbally advised due to other building offences on the site the Enforcement Notice would be withdrawn and replaced with Show Cause Notices for the building offences on the site.
  1. On the 5 July 2011 Show Cause Notices for the unapproved building works were issued to the property owners.
  1. A re-inspection of the site on the 8 August indicated no change to the site.
  1. A re-inspection of the site on the 1 September indicated no change to the site.
  1. Checks of Councils systems failed to indicate a development permit for the works on the site has been granted or received.

You are required to do the following:

  1. (a)
    Obtain development permits for the existing class 1a dwelling
  1. (b)
    Obtain development permits for the class 10a shed
  1. (c)
    Obtain all other permits associated with the development approval of class 1a and 10a development at the premise; and
  1. (d)
     to refrain from committing the offence by the expiry of this notice

You are required to comply with the requirements by 3 October 2011.

You must seek to obtain approval for any work subject of this notice, by submitting an application for a development approval to a private building certifier for those works.

You have the right to appeal to the building and development dispute resolution committee. Any appeal must be started:

 1. Within 20 business days after the day this notice is given; or

  1. If this notice is given in relation to a dangerous building or structure, then such appeal must be started within 5 business days after this notice is given.

 The lodging of an appeal stays the operation of this notice until:

   1. The tribunal, on the application of Council, decides otherwise;

   2. The appeal is withdrawn;

   3. The appeal is dismissed.

 However there is no stay if this notice is about:

  1. A work and states Council believes the work is a danger to persons or a risk to public health; or
  1. Carrying out development that is the demolition of a work.

 Pursuant to Section 473(1) of the SPA you also have a right to appeal to the Planning and Environment Court against the giving of this notice. Pursuant to Section 473(2) of the SPA any appeal must be started within twenty (20) business days after the day this notice is given or, if this notice is given in relation to a dangerous building or structure then such appeal must be started within five (5) business days after this notice is given.

 It is an offence against Section 594(1) of the SPA to fail to comply with this notice. Upon conviction by a court for a development offence, the maximum penalty, which can be imposed under IPA, is 1,665 penalty units (which equates with $166,500 for an individual or $832,000 for a corporation). In addition, legal costs can be claimed.

 Further, in relation to a corporation, Section 611 of the SPA provides that the executive officers of a corporation must ensure the corporation complies with the SPA. If a corporation commits an offence against a provision of the SPA, each of the corporation’s executive officers also commits an offence, namely the offence of failing to ensure the corporation complies with the provision and is subject to a pently of 1,665 penalty units (currently $166,500).

 Please note that any response to the Show Cause Notice may be used by Council in any legal proceeding against you, whatsoever.

 Dated this Second day of September, 2011.

  1. [6]
    There is no suggestion there was any compliance with the notice by 3 October 2011.
  1. [7]
    On 26 June 2013 the respondent filed the relevant complaints alleging in each case that on or about 19 December 2011, in breach of section 594(1) of the SPA, each of the relevant applicants failed to comply with enforcement notices issued by the Mackay Regional Council dated 2 September 2011 in that by 19 June 2013 they failed to:
  1. (a)
    Obtain a development permit for the class 1(a) dwelling on the property;
  1. (b)
    Obtain a development permit for the class 10(a) shed on the property; and
  1. (c)
    Obtain all other permits associated with the development approval of the class 1(a) and 10(a) developments on the property.

Limitation Period

  1. [8]
    Section 610 of the SPA provides:

A proceeding for an offence against this Act must start –

 a) within 1 year of the commission of the offence; or

 b) within 6 months after the offence comes to the complainants knowledge.

  1. [9]
    At all times in this matter it has been accepted that the relevant limitation period in this case is within 1 year of the commission of the offence.

Preliminary Argument before the Learned Magistrate

  1. [10]
    The applicants argued before the learned Magistrate that the offence was not a continuing one and that it was, effectively, complete once the applicants had failed to comply with the requirement to obtain the necessary development permits by 3 October 2011. It was argued that the proceedings, therefore, should have been instituted prior to the 3 October 2012.
  1. [11]
    The respondent argued that the gravamen of the offence in this case was found in something that the applicants could, at will, discontinue by obtaining the relevant permits, and was, therefore a continuing offence.
  1. [12]
    The learned magistrate eventually accepted that the offence was a continuing one. He arrived at this conclusion after consideration of the relevant sections of the SPA.

Notice of Appeal

  1. [13]
    The applicants now appeal that decision on the following grounds:
  1. The learned magistrate erred in law in finding the offence contained in section 594(1) of the SPA as alleged against the appellant was a continuing one.
  1. The learned magistrate erred in law in finding the complaint and summons issued against the appellant was not issued out of time as required by section 610 of the SPA.

The Law

  1. [14]
    In Sloggett v Adams[1] (“Sloggett”)at page 208, Street CJ said:

The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me is one which was prescribed in Ellis v Ellis[2], by Sir Francis Jeune, who said: “The test whether an offence is to be treated in law as continuous is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue.”

  1. [15]
    Sloggett involved an offence for failing to comply with a notice to remove noxious weeds from a property within a time stipulated within that notice.  Proceedings there were instituted outside the time required under the relevant legislation and in that case the court eventually determined that the offence was not a continuing one because the gravamen of the offence was the failure to comply with the notice.
  1. [16]
    Sloggett was followed by the New South Wales Court of Appeal in Environment Protection Authority v Alkem Drums Pty Ltd (“Alkem Drums Pty Ltd”).[3]Smart AJ said at page 140:

The authorities seem agreed that the question whether non-compliance with a legal duty must be formed within a prescribed time is a continuing offence or a once and for all offence must be answered by reference to the language of the section or regulation creating the offence and in the context in which it is found (see Leydon v Forest (1980) 23 SASR 364 at 375 per King CJ).  The difficulty lies not in the statement of principle but in its application.

  1. [17]
    Further on at page 143 he said:

While I accept the distinction between cases where there has been non-compliance with a notice and those where there has been non-compliance with a provision of a statute or regulation I do not for the reasons given earlier accept that non-compliance with a notice within the time specified results in the offence not being a continuing one.  Much, if not all, depends on the terms of the statute and the regulation but the terms of the notice may also be important in a particular case.

The Legislation

  1. [18]
    By virtue of section 3 of the SPA the purpose of the Act is to seek to achieve ecological sustainability by:

(a) managing the process by which development takes place, including ensuring the process is accountable, effective and efficient and delivers sustainable outcomes; and

(b) managing the effects of development on the environment, including managing the use of premises; and

(c) continuing the coordination and integration of planning at the local, regional and State levels.

  1. [19]
    Section 4(1)(a) of the SPA requires an entity on which a power or function is conferred under the Act to exercise that power in a way that advances the purposes of the Act.
  1. [20]
    Section 5(1) provides:

(1) Advancing this Act's purpose includes—

(a) ensuring decision-making processes—

(i) are accountable, coordinated, effective and efficient; and

(ii) take account of short and long-term environmental effects of development at local, regional, State and wider levels, including, for example, the effects of development on climate change; and

(iii) apply the precautionary principle; and

(iv) seek to provide for equity between present and future generations; and

(b) ensuring the sustainable use of renewable natural resources and the prudent use of non-renewable natural resources by, for example, considering alternatives to the use of non-renewable natural resources; and

(c) avoiding, if practicable, or otherwise lessening, adverse environmental effects of development, including, for example—

(i) climate change and urban congestion; and

(ii) adverse effects on human health; and

(d) considering housing choice and diversity, and economic diversity; and

(e) supplying infrastructure in a coordinated, efficient and orderly way, including encouraging urban development in areas where adequate infrastructure exists or can be provided efficiently; and

(f) applying standards of amenity, conservation, energy, health and safety in the built environment that are cost-effective and for the public benefit; and

(g) providing opportunities for community involvement in decision making.

  1. [21]
    Section 5(1)(f) is particularly relevant in a case such as this.
  1. [22]
    Chapter 6 contains the Integrated Development Assessment System (“IDAS”) and is defined in section 230 as the system detailed in chapter 6 for integrating state and local government assessment and approval processes for development.
  1. [23]
    The various types of approval for IDAS are set out in section 240 of the SPA and section 243 of the Act authorises assessable development to take place to the extent stated in the permit subject to the conditions of the permit and any preliminary approval relating to the development the permit authorises.
  1. [24]
    As the learned magistrate said on page 7 of his decision it is significant that, pursuant to section 245, any development approval once given attaches to the land in question and binds the owner and the owners successors in title and any occupier of the land.[4]
  1. [25]
    I turn now to the sections relevant to the issue of an enforcement notice.
  1. [26]
    Section 590(1) of the SPA provides:

If an assessing authority reasonably believes a person has committed, or is committing, a development offence, the authority may give a notice (an enforcement notice) to the person requiring the person to do either or both of the following—

(a) to refrain from committing the offence;

(b) to remedy the commission of the offence in the way stated in the notice.

Note—

A person who receives an enforcement notice may appeal against the notice under section 473 or 533 Appeals against enforcement notices).

  1. [27]
    Section 592 provides:

Specific requirements of enforcement notice

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

(a) to stop carrying out development;

(b) to stop a stated use of a premises;

(c) to demolish or remove a work;

(d) to restore, as far as practicable, premises to the condition the premises were in immediately before development was started;

(e) to do, or not to do, another act to ensure development complies with a development approval, a compliance permit, a code or a master plan;

(f) to apply for a development permit or make a master plan application;

(g) to make a request under section 401 for compliance assessment of development, a document or work requiring compliance assessment;

(h) if the assessing authority reasonably believes a work is dangerous—

(i) to repair or rectify the work; or

(ii) to secure the work, whether by a system of supports or in another way; or

(iii) to fence off the work to protect persons;

(i) to prepare and submit to the assessing authority a compliance program demonstrating how compliance with the enforcement notice will be achieved.

(2) However, a person may be required to demolish or remove a work only if the assessing authority reasonably believes it is not possible and practical to take steps—

(a) to make the work comply with a development approval, a compliance permit, a code or a master plan; or

(b) if the work is dangerous—to remove the danger.

  1. [28]
    Section 593 provides:

General requirements of enforcement notices

(1) An enforcement notice must—

(a) be in writing; and

(b) describe the nature of the alleged offence; and

(c) inform the person to whom the notice is given of the person’s right to appeal against the giving of the notice.

(2) If an enforcement notice requires a person to do an act involving the carrying out of work, it also must give details of the work involved.

(3) If an enforcement notice requires a person to refrain from doing an act, it also must state either—

(a) a period for which the requirement applies; or

(b) that the requirement applies until further notice.

(4) If an enforcement notice requires a person to do an act, it also must state a period within which the act is required to be done.

(5) If an enforcement notice requires a person to do more than 1 act, it may state different periods within which the acts are required to be done.

  1. [29]
    Section 594 provides:

Offences relating to enforcement notices

(1) A person who is given an enforcement notice must comply with the notice.

Maximum penalty—1665 penalty units.

(2) A person must not damage, deface or remove an enforcement notice given under section 590(8).

Maximum penalty—1665 penalty units.

Enforcement Notice

  1. [30]
    By virtue of section 590(1) of the SPA the issuing authority can only issue an enforcement notice if it reasonably believed that the respondent had committed or was committing a development offence.
  1. [31]
    In this case the authority identified that the applicants had committed or were committing a development offence in contravention of section 578(1) of the SPA which provides:

A person must not carry out assessable development unless there is an effective development permit for the development.

Maximum penalty—1665 penalty units.

What is also important in this case is the reference to the fourth requirement on page 2 of the notice, i.e. “(d) To refrain from committing the offence by the expiry of this notice.”

  1. [32]
    Requirements (a), (b) and (c) all relate to the obtaining of the necessary development permits or other permits but this notice goes further than that and requires the applicants to refrain from committing the offence.
  1. [33]
    In Alkem Drums Pty Ltd (supra) the court was concerned with a notice under the Clean Water Regulations 1972 (NSW) to construct a bund around an area where leaking drums were kept and the notice was not complied with.
  1. [34]
    The relevant authority was there given the power to issue a notice in circumstances where pollutants were likely to be discharged into waters from any premises. The legislation further provided that an occupier who does not comply with the requirements of the notice committed an offence.
  1. [35]
    At page 135 Smart AJ said:

The Clean Waters Regulations did not require the EPA to draft its notice in any particular way. Basically, it was a matter for it whether it gave a notice to the respondent, non-compliance with which could lead to a continuing offence, or one which could lead to a once and for all offence. It could have indicated, clearly, that it was imposing, by its notice, a continuing obligation to remove the relevant drums, with an indication that removal of the drums by 30 April would constitute sufficient compliance. It did not choose to take this course. It chose rather to impose a requirement which, in my view, if not complied with, produced a once and for all offence pursuant to reg 21(3).

  1. [36]
    There seems to me to be a clear distinction between the legislation and notice in Sloggett and Alkem Drums Pty Ltd on the one hand and the current case.  The power to issue the notice can only arise here if the relevant authority reasonably believes that the person has committed or is committing a development offence.  There did not appear to be any such requirement in the relevant legislation in either Sloggett or Alkem Drums Pty Ltd.  In those cases the obligation arose on the provision of the notice.
  1. [37]
    Section 590(1)(a) and requirement (d) of the notices relate to an offence which was ongoing. The relevant notices here provided for the remedy pursuant to section 590(1)(b) in paragraphs (a), (b) and (c) of the requirements and also required the applicants to refrain from committing the offence.
  1. [38]
    Section 594 must be considered in the light of what is contained in ss 590, 592 and 593.
  1. [39]
    By virtue of section 593(4) it was necessary to state a period in which the acts required in requirements (a), (b) and (c) had to be done.
  1. [40]
    In effect, therefore, the notices required the applicants to refrain from the commission of the ongoing offence and to take the necessary steps to remedy that situation within a certain time.

Decision

  1. [41]
    I was referred to a decision of Durwood DCJ in Montrose Creek Pty Ltd & Ors v Brisbane City Council (“Montrose Creek Pty Ltd”).[5]This was a decision which dealt with the issue of whether or not a notice issued by the Brisbane City Council pursuant to the SPA was in relation to a continuing offence.
  1. [42]
    The enforcement notice in that case which was also issued pursuant to section 590 of the SPA required the applicants within twenty (20) business days to pay infrastructure contributions towards the cost of sewerage headworks and water supply headworks.
  1. [43]
    The applicants there argued that the relevant obligation to pay was a once and for all obligation and that there was not a continuing offence.
  1. [44]
    At paragraph 47 of Montrose Creek Pty Ltd Durwood DCJ said:

The failure by Montrose and by Manningtree to pay the infrastructure charges in my view constitutes a development offence and it is a continuing offence. Defined otherwise would result in an unsustainable situation when the person benefiting from a development approval would not pay their share of infrastructure demand created by a development.  That it is a continuing offence is a logical consequence of the attachment of the obligation to the land.[6]

  1. [45]
    The same reasoning would apply here. It would be illogical to find that the obligation to obtain the necessary permits stopped after the 3 October 2011. It would be contrary to the purposes of the SPA if that were the case.
  1. [46]
    I agree with the learned Magistrate that the offence here was one which the applicants could have discontinued at will at any time by obtaining the necessary permits.
  1. [47]
    I would agree that the gravamen of the offence in this case was the failure to apply for the relevant permits. The fact that a date for compliance had to be inserted in the notice for the purposes of section 593(4) of the SPA does not on a proper reading of the legislation result in a conclusion that the gravamen of the offence is the failure to comply with the notice.
  1. [48]
    If the legislation merely empowered the authority to issue a notice to do an act and that was as far as the notice went, then I believe that the applicants would have a valid argument under the principles as stated in Sloggett and Alkem Drums Pty Ltd.  Here however, both the legislation and the notices go further, with the power to issue the notices based on reasonable belief as to the commission of a development offence and with the notices specifying such an offence and making specific reference to refraining from committing the offence.
  1. [49]
    For these reasons I find that the offence is a continuing one and all three appeals against the Magistrate’s orders are dismissed.
  1. [50]
    I will hear the parties on costs.

Footnotes

[1] [1953] 70 WN (NSW) 206.

[2] (1896) P 251 at p 254.

[3] (2000) 113 LGERA 130

[4] Sustainable Planning Act 2009 (QLD) s 245(1).

[5] [2012] QPEC 65.

[6] Montrose Creek Pty Ltd & Ors v Brisbane City Council [2012] QPEC 65, [47].

Close

Editorial Notes

  • Published Case Name:

    Newton v Shepherd; Dreghorn v Shepherd

  • Shortened Case Name:

    Newton v Shepherd; Dreghorn v Shepherd

  • MNC:

    [2015] QDC 331

  • Court:

    QDC

  • Judge(s):

    Harrison DCJ

  • Date:

    18 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ellis v Ellis (1896) P 251
1 citation
Jump To
Cite 1 - (1896) P 251
Environmental Protection Authority v Alkem Drums Pty Ltd. (2000) 113 LGERA 130
4 citations
Jump To
Cite 1 - (2000) 113 LGERA 130
Cite 2 - (2000) 113 LGERA 130
Cite 3 - (2000) 113 LGERA 130
Cite 4 - (2000) 113 LGERA 130
Leydon v Forest (1980) 23 SASR 364
1 citation
Jump To
Cite 1 - (1980) 23 SASR 364
Montrose Creek Pty Ltd v Brisbane City Council [2012] QPEC 65
4 citations
Jump To
Cite 1 - [2012] QPEC 65
Cite 2 - [2012] QPEC 65
Cite 3 - [2012] QPEC 65
Cite 4 - [2012] QPEC 65
Sloggett v Adams (1953) 70 WN (NSW) 206
2 citations
Jump To
Cite 1 - (1953) 70 WN (NSW) 206
Cite 2 - (1953) 70 WN (NSW) 206

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.