What's err matter: Planning and Environment Court of Queensland dismisses appeal against a Development Tribunal decision about an enforcement notice

In brief

The case of Brisbane City Council v Tina and Tony Pty Ltd [2022] QPEC 36 concerned an appeal to the Planning and Environment Court of Queensland (Court) by the Brisbane City Council (Council) against the decision of the Development Tribunal (Tribunal) to allow an appeal brought by a landowner (Respondent) to replace an enforcement notice issued by the Council.

The Respondent is the owner of land at 60 Lancelot Street, Tennyson (Subject Land). On 1 December 2020 the Council issued to the Respondent an enforcement notice under section 168 of the Planning Act 2016 (Qld) (Planning Act) alleging an offence under section 165 for unlawful use of the Subject Land for a multiple dwelling (Enforcement Notice). On 16 December 2020 the Respondent appealed the Enforcement Notice to the Tribunal which subsequently allowed the appeal on 10 January 2022 and replaced the Enforcement Notice with a decision to not give the Enforcement Notice. 

For the Court to allow the appeal against the decision of the Tribunal, the Council had to show that there was either a mistake in law on the part of the Tribunal or a jurisdictional error (see section 229 and schedule 1, table 2, item 1 of the Planning Act). 

The Court determined that the Council did not discharge the onus to establish that the appeal should be upheld and the Court dismissed the appeal. 

Schedule 1, section 1 of the Planning Act

To help understand the Court's decision, it is necessary to have regard to schedule 1, section 1(2)(a) to (h) of the Planning Act, which states that for the purpose of section 229 of the Planning Act the Tribunal may hear an appeal if the matter involves the following: 

"(a) the refusal, or deemed refusal of a development application, for— 

(i) a material change of use for a classified building; or 
(ii) operational work associated with building work, a retaining wall, or a tennis court; or 

(b) a provision of a development approval for— 

(i) a material change of use for a classified building; or 
(ii) operational work associated with building work, a retaining wall, or a tennis court; or 

(c) if a development permit was applied for—the decision to give a preliminary approval for— 

(i) a material change of use for a classified building; or 
(ii) operational work associated with building work, a retaining wall, or a tennis court; or 

(d) a development condition if— 

(i) the development approval is only for a material change of use that involves the use of a building classified under the Building Code as a class 2 building; and
(ii) the building is, or is proposed to be, not more than 3 storeys; and 
(iii) the proposed development is for not more than 60 sole-occupancy units; or 

(e) a decision for, or a deemed refusal of, an extension application for a development approval that is only for a material change of use of a classified building; or 
(f) a decision for, or a deemed refusal of, a change application for a development approval that is only for a material change of use of a classified building; or 
(g) a matter under this Act, to the extent the matter relates to the Building Act, other than a matter under that Act that may or must be decided by the Queensland Building and Construction Commission;
(h) a decision to give an enforcement notice─

(i) in relation to a matter under paragraphs (a) to (g); or
(ii) under the Plumbing and Drainage Act 2018; or

…"

Council argued four appeal grounds at the hearing

The Tribunal provided on 10 January 2022 its Notice of Decision with reasons, as required under section 255 of the Planning Act (Decision Notice). The Tribunal allowed the appeal and replaced the decision to give with Enforcement Notice with a decision to not give the Enforcement Notice (at [11]). 

The Decision Notice relevantly stated as follows under the heading "Jurisdiction" (at [12]):

"13. The Tribunal has jurisdiction for an appeal against a decision to give an enforcement notice in relation to a matter under paragraphs (a) to (g) of section 1(2) of Schedule 1 of the Planning Act 2016. 
14. The Tribunal is of the view it has jurisdiction to decide this appeal. In short, the Tribunal is of the view that: 
(a) 'a material change of use of a classified building' is one of the matters under paragraphs (a) to (g); and 
(b) the decision to give the enforcement notice in this appeal concerns an unlawful use of a class 1 building which is 'in relation to a material change of use of a classified building.’. 
15. The detailed reasons for this view are set out in the Appendix to this decision."

In respect of the Tribunal's decision as to jurisdiction, the Court stated that it was apparent that the decision was informed by its determination about the following (at [14]): 

"(a) the meaning to be ascribed to 'matter' in sch 1, s 1(2)(h) of the Planning Act 2016; and 
(b) whether the decision to give an enforcement notice was 'in relation to the identified matter', i.e. whether there was the necessary relationship between the enforcement notice and the 'matter'."

The Council argued the following errors in respect of the Decision Notice:

1. The Tribunal erred in its construction of "a material change of use for a classified building" under schedule 1, sections 1(2)(a), (b) and (c) of the Planning Act.

2. The Tribunal erred in respect of the meaning it ascribed to "matter" in schedule 1, section 1(2)(h) of the Planning Act.

3. There is not the necessary relationship between the Enforcement Notice and the "matter" the subject of schedule 1, section 1(2)(h) of the Planning Act.

4. The proper construction of schedule 1, section 1(2)(h) of the Planning Act is that the Tribiunal's jurisdiction is excluded under schedule 1, section 1(3)(a)(i) of the Planning Act.

Court finds that the Council's arguments were not succinctly stated in the Notice of Appeal

The Respondent argued that two of the four allegations of error raised by the Council were not raised in the Notice of Appeal, and argued that "… the [Council] should not now be permitted to rely on them" (at [20]). In considering whether the Council could raise issues beyond the ambit of the Notice of Appeal, the Court considered the context of the situation and section 230 of the Planning Act which requires that an appeal be "… in the approved form and succinctly states the grounds of the appeal" (at [22]). The Court relied upon the decision in Trinity Park Investments Pty Ltd v Fabcot & Ors; Dexus Funds Management Limited v Fabcot Pty Ltd [2021] QCA 276 where Bond JA stated that "…it is not up to this Court to wade through the documents to see if a question of law can somehow be found by the examination of written and oral arguments …. If there is legal error it must be specifically identified. As Posner J famously observed in US v Dunkel 927 F. 2d (7th Cir 1991), 'Judges are not like pigs, hunting for truffles in buried briefs'" (at [23]). 

Although the appeal was in the approved form, the Court found that the Notice of Appeal did not succinctly state the grounds of the appeal. This alone was enough to satisfy the Court that the appeal ought to be dismissed, but for completeness the Court went on to consider each of the Council's allegations made at the hearing. 

Court finds that the Tribunal did not err in its construction of "a material change of use for a classified building" 

The Council argued that section 109 of the Building Act 1975 (Qld) (Building Act) ought to be construed as making the change of a classification of a building assessable development as a material change of use for the purpose of the Planning Act, with the consequence that because the Enforcement Notice did not relate to a change of building classification the Tribunal did not have the requisite jurisdiction under schedule 1, sections 1(2)(a), (b) and (c) of the Planning Act. Although the Council abandoned this argument at the hearing, the Court still considered it.

The Council's argument relied upon an interpretation of the words "use change" and "a change to the use" in section 109(1) of the Building Act as being the same as "a material change of use" under the Planning Act. The Court found that the Council's argument construed section 109 of the Building Act out of context, and also overlooked the purpose and scheme of the Building Act. In particular, the Court focused on section 3 of the Building Act which states a simplified outline of the Building Act. The Court observed that Chapters 2, 3 and 4 of the Building Act relate to the assessment of building work for the purposes of the Planning Act whereas Chapter 5, which contains the provisions relied upon by the Council, does not relate to the assessment of building work for the purposes of the Planning Act (see [37] to (40]). The Court did not however determine the Council's argument because the Council had abandoned it during the hearing (at [41]).

Court finds that the Tribunal did not err in respect of the meaning to be ascribed to "matter" in schedule 1, section 1(2)(h) of the Planning Act

The Council argued that the word "matter" in schedule 1, section 1(2)(h) of the Planning Act is to be construed as including all of the words that appear in each of the referenced subsections and that the Tribunal's approach gave no work to the leading words in each subsection (see [42] to [43]).

The Court disagreed and found "no fault" with the Tribunal's reasoning (at [44]).

Court finds that the Tribunal did not err in finding that the Enforcement Notice was "in relation to" a matter under schedule 1, section 1(2)(a) of the Planning Act

The Council argued that the Enforcement Notice is not a matter "in relation to" schedule 1, sections 1(2)(a) to (g) of the Planning Act.

The Respondent argued that the Tribunal correctly relied upon the High Court leading authority in O'Grady v Northern Queensland Co Ltd [1990] HCA 16, which relevantly states that "in relation to" ought to be construed "as requiring a broad relationship between two subject matters, as limited by the context of the legislation" (at [46]). The Council had acknowledged that the alleged unlawful use of premises does "raise a question of a material change of use of that classified building" (at [46]). The Respondent argued that the Tribunal correctly found that there was a sufficient relationship "because a material change of use is "at the heart" of an allegation of unlawful use". The Court agreed and found "no fault" with the Tribunal's reasoning (at [47]).

Court finds that the Tribunal's jurisdiction was not excluded under schedule 1, section 1(3)(a)(i) of the Planning Act

Schedule 1, section 1(3)(a)(i) of the Planning Act provides that there is no right of appeal to the Tribunal if the matter involves:

"(a) for a matter in subsection (2)(a) to (d)— 

(i) a development approval for which the development application required impact assessment; and 

(ii) a development approval in relation to which the assessment manager received a properly made submission for the development application; or 

(b) a provision of a development approval about the identification or inclusion, under a variation approval, of a matter for the development."

At the hearing, the Respondent argued that the first time the Council raised the allegation was at the hearing and it was based upon facts that were not before the Tribunal. In response, the Council abandoned the argument and the Court therefore did not deal with it.

Conclusion

The appeal was dismissed.