Councils understand their obligations in regulatory matters to gather evidence to inform enforcement steps and comply with other strict legal requirements that apply to the enforcement process.
A recent decision of the District Court of Queensland demonstrates the importance of ensuring that when taking any enforcement step, evidence is carefully and meticulously gathered, even in circumstances where Council considers that the matter might not go before a Court.
On 21 December 2023, the District Court in the case of Kenefick & ors v Lockyer Valley Regional Council [2023] QDC 249 (Kenefick) dismissed the appeals of a landowner and other users of the same land in relation to Councils’ removal of property from the land as part of an enforcement process under the Sustainable Planning Act 2009 (SPA).
Summary of the Decision
In Kenefick, the landowner and relevant users appealed a decision of the Magistrates Court to the District Court.
The appellants claimed that property on the land was removed unlawfully, and they were entitled to compensation.
The Council’s case was that:
- a number of items were stored at the premises;
- the storage of the items met the definition of “junk yard” in the Planning Scheme, which was a use for which there was no approval given by the Council;
- the landowner had committed offences under Sections 578 and 582 of SPA. Those provisions, which are mirrored in the current Planning Act 2016, relate to:
- carrying out assessable development without a permit;
- offences about the use of premises;
- all requisite Statutory Notices were served upon the landowner to give him an opportunity to comply with SPA and the relevant Planning Scheme;
- the landowner failed to comply with the notices that required him to remove items from the premises.
The landholder and owners of the property claimed, among other things, that there were defects in Council’s enforcement process, defects in how Council exercised powers of entry to remedy the alleged breaches, and ultimately alleged that Council’s activities were unlawful and they were entitled to damages.
The Court held that all property was removed lawfully pursuant to enforcement action under the Local Government Act 2009 (LGA).
Running an enforcement process
Two compliance officers for Council gave evidence in the matter. The Court accepted that evidence, and the Judgment identified that:
- Council had made “numerous failed attempts to … informally resolve the issue”. While informal attempts at resolution may not be productive, these activities are often a logical and inexpensive starting point for any regulatory action taken by a local government and can assist in developing a productive relationship between Council and the offender. Even if those efforts fail, they will often be considered favourably by a Court, as they assist in demonstrating how the local government has acted reasonably in attempting to resolve the matter, without the intervention of the Court.
- The relevant Statutory Notices, and in particular compliance with the requirements under the relevant legislation and service of the Notices, were considered. The proper preparation of all Statutory Notices, consistent with legislative requirements, and the service of those Notices as required by the relevant Act is an essential component of the enforcement process that can put the entire process at risk of failure if carried out incorrectly.
- Council entered the Premises to gather evidence following a warrant. The LGA contains powers of entry for compliance purposes that are strictly applied by Courts.
Just like the issues of form and service of Statutory Notices, any defect in the exercise of a power of entry under the LGA puts the evidence gathered as part of the enforcement process at risk of being inadmissible and can jeopardise the entire process.
For that reason, ensuring that powers of entry are exercised lawfully is one of the most critical features of any enforcement process.
- The oral evidence provided by the compliance officers was corroborated by photographs, and that “provided overwhelming evidence that the respondent and its contractors were lawfully on the land, and lawfully entitled to clear the premises”.
- This evidence was also supported by contemporaneous documents. It is widely recognised that contemporaneous material, including file notes, memos and similar material, is significantly more persuasive than material prepared after the fact.
Councils’ success in the enforcement process that was considered in Kenefick was underpinned by an effective enforcement process that was accepted in all respects by the Court.
This case reiterates the importance of:
- having regard to the relevant legislation when taking enforcement steps, including processes associated with issuing Statutory Notices and exercising powers of entry;
- the collection of sufficient, contemporaneous evidence.
Preston Law assists Councils throughout Queensland in all aspects of its regulatory functions. If you have any queries about this blog, or enforcement matters generally, please don’t hesitate to contact our team.