The applicant was the builder of an apartment building. Following investigations into damage caused by the applicant’s building activities to an adjacent apartment building, the QBCC imposed conditions on its building licence relying on its general powers under s 36 QBCC Act 1991. The applicant sought declaratory relief that the licence conditions were void on the ground that the subject matter of those conditions was regulated by specific provisions of other parts of the Act where the exercise of those powers was subject to additional constraints. Flanagan J accepted the applicant’s argument that the imposition of the conditions was, in these circumstances, inconsistent with the scheme provided for by the Act. The conditions were beyond the power provided for by s 36 and therefore void.
16 December 2019
The applicant, Groupline Constructions, is the builder of an apartment building at Coolangatta (the “Maya Development”). It is adjacent to another apartment building, Kirra Vista. –. As a result of a complaint, the Queensland Building and Construction Commission (“QBCC”) investigated damage caused to Kirra Vista arising from the Maya Development construction. . QBCC ultimately imposed seven conditions on the applicant’s building licence. . In effect those conditions required the applicant to make good damage caused to Kirra Vista, and to not proceed to undertake any further works until certain other requirements were met (including reporting requirements and the consent of QBCC). .
By this application, the applicant sought declaratory relief that the licence conditions are void and of no effect, either pursuant to s 10 Civil Proceedings Act 2011, Pt 5 Judicial Review Act 1991, or in the inherent jurisdiction of the Court. . The key question was whether the QBCC had power to impose the seven conditions on the applicant’s building licence pursuant to s 36 Queensland Building and Construction Commission Act 1991 (“the Act”). .
The arguments of the parties
The QBCC has power to impose conditions on a building licence under s 36 of the Act, including where it has reason to believe that there is “some proper ground for imposing a condition on the licence” and it is satisfied that such a condition would be “appropriate”. .
The applicant’s primary submission was that the scheme of the Act did not permit the imposition of the seven conditions in this case, because the subject matter of those conditions was “regulated by specific provisions of the Act”. For example, some of the conditions were akin to a requirement to stop work, orders for which are available under and regulated by s 108AI of the Act. Other conditions were akin to directions to rectify consequence damage, orders for which are provided under and regulated by Pt 6 of the Act. . The QBCC had not used its powers under those more specific provisions.
The respondent submitted that its power to impose conditions under s 36 was a broad one, and that there was no cause for reading down that power as if it were subject to limitations “not appearing in the words of that grant”. –. QBCC suggested that one of the Act’s objects, of enabling the QBCC to regulate the building industry, supported a construction of s 36 that was not limited in the way contended for by the applicant. .
Flanagan J concluded that QBCC did not have the power to impose the seven conditions on the applicant’s building licence. His Honour noted that the applicant’s key submission was supported by the authorities. In particular, in Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1, 7, a plurality of the High Court had observed:
“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”
In this case, the licence conditions imposed covered the same subject matter as either a stop work notice (under s 108AI of the Act) or a notice to rectify or remedy consequential damage (under Part 6 of the Act). . The exercise of those specific powers were governed by a number of requirements, for instance that QBCC form a necessary opinion, and timing and procedural requirements. . It was impermissible for QBCC to impose conditions on a licence that had “the effect of either enlarging or circumventing” those requirements. .
In the result, the application was successful. His Honour said he would hear from the parties about orders and costs. .