Show Cause and Enforcement Notices issued under the Building Act 1975 (Qld)

A Show Cause Notice is, in essence, a written notice issued by a relevant authority against a person (which may include an entity) foreshadowing that certain action will be taken against the person at the expiration of a prescribed period of time (the “Show Cause Period“). The person will, however, be invited to make submissions during the Show Cause Period as to why the foreshadowed action should not be taken.

The Show Cause Notice must also, generally, outline the facts and circumstances forming the basis for the belief that an Enforcement Notice should be given to the person and further, state how, and where, the submissions or representations may be made to the relevant authority. At the present, a Show Cause Notice must be issued by the relevant authority in the following circumstances under the Building Act 1975 (Qld):

• Chapter 6, Part 3, s175(1) – by the Queensland Building and Construction Commission (“QBCC“), if the QBCC believes grounds exist warranting an exercise of power to amend, or remove, a condition of a building certifier’s licence, or to cancel or suspend the licence of a building certifier;
• Chapter 6, Part 4, s206(1) – by the local government, if it reasonably believes proper grounds exist for applying to the Queensland Civil and Administrative Tribunal (“QCAT“) to start a disciplinary proceeding against a building certifier;
• Chapter 8, Part 6, Division 4, Subdivision 2, s246BX(1) – by the QBCC commissioner, if the QBCC commissioner believes grounds exist warranting an exercise of power to amend, or remove, a condition of a pool safety inspector’s licence, or to cancel or suspend the licence of a pool safety inspector; and
• Chapter 9, s247(1) – by the local government, if it reasonably believes that the building, structure or building work:
  • was built before the commencement of s248 of the Building Act 1975 (Qld) without, or not in accordance with, the approval of the local government; or
  • is dangerous; or
  • is in a dilapidated condition; or
  • is unfit for use or occupation; or
  • is filthy, infected with disease or infested with vermin.

Pursuant to s248(1) of the Building Act 1975 (Qld), a local government may give an Enforcement Notice to the owner of a building, structure or building work, if the local government reasonably believes that the building, structure or building work:

• was built before the commencement of this section without, or not in accordance with, the approval of the local government; or
• is dangerous; or
• is in a dilapidated condition; or
• is unfit for use or occupation; or
• is filthy, infected with disease or infested with vermin.

The local government may also give an Enforcement Notice to a person who does not comply with another matter under the Building Act 1975 (Qld). However, before a local government may give a person an Enforcement Notice, the local government must give the person a Show Cause Notice (but only if the matter is not of a dangerous or minor nature).

An Enforcement Notice given under section 248(1) of the Building Act 1975 (Qld) is taken to be an Enforcement Notice given under section 168 of the Planning Act 2016 (Qld) (which relates to the commission of development offences), which means, effectively, that the Enforcement Notice must also state the following matters:

• the nature of the alleged offence; and
• if the Enforcement Notice requires the person not to do an act:
  • the period for which the requirement applies; or
  • that the requirement applies until further notice; and
• if the Enforcement Notice requires the person to do an act:
  • the details of the act; and
  • the period within which the act must be done; and
• that the person has an appeal right against the giving of the Enforcement Notice.

Without limiting the specific requirements that an Enforcement Notice may impose, section 249 of the Building Act 1975 (Qld) states that an Enforcement Notice may require a person to do any of the following:

• to apply for a development permit;
• to do, or not to do, another act to ensure building work complies with the approval of the local government given before the commencement of this section;
• to repair or rectify the building or structure;
• to secure the building or structure (whether by a system of supports or in another way);
• to fence off the building or structure to protect persons;
• to cleanse, purify and disinfect the building or structure;
• to demolish or remove the building or structure; or
• to comply with the Building Act 1975 (Qld) for a particular matter.

The expiration date will be stated in the Show Cause Notice, but generally, the day or period must end at least twenty (20) business days after the Show Cause Notice is given to the person.

If the Enforcement Notice requires the person not to do an act, then the Enforcement Notice must specify the period for which this requirement applies. If the Enforcement Notice requires the person to do an act, then the Enforcement Notice must specify the period within which the act must be done.

A person who is given an Enforcement Notice under s248 of the Building Act 1974 (Qld) may appeal to a Development Tribunal as if the appeal were an appeal under the Planning Act 2016 (Qld).

The appeal must be started within:

• if the Enforcement Notice is given in relation to a dangerous building or structure – 5 business days after the Enforcement Notice is given to the person; or
• if the Enforcement Notice is given for any other purpose – 20 business days after the Enforcement Notice is given to the person.

You commence an appeal before the Development Tribunal by lodging a Form 10 “Notice of Appeal/Application for Declaration” (“Appeal Notice“). Once the Appeal Notice is filed, together with the required filing fee, and there are no issues of non-compliance with either form or substance with the Appeal Notice, the Registrar must:

• establish a tribunal for the proceedings; and
• appoint 1 of the referees for the tribunal as the tribunal’s chairperson, in the way required under a regulation; and
• give notice of the establishment of the tribunal to each party to the proceedings, which generally will include the following information:
  • notice of the appeal or declaration, including a copy of the application and related documents; and
  • notice of the hearing, including if and when written submissions are required.

The Registrar will send copies of all documentation submitted to the Development Tribunal through the registry to all parties for review (and response if required). If you submit confidential information, or any documents subject to legal professional privilege, the confidentiality of this information will be immediately waived on being filed with the Registry. Accordingly, it is highly recommended that you commence any appeal with the assistance of a litigation lawyer.

However, you should note that a party to a tribunal proceeding may only appear in person or by an agent who is not a lawyer. Whilst a party may not be represented by a lawyer (formally, on the record), the party may nonetheless seek independent legal advice about lodging an appeal and complying with the tribunal proceeding until the final hearing (whether in the form of assisting with the preparation of written submissions, evidence, expert evidence, strategy etc).

Ultimately, the Development Tribunal will decide how the tribunal proceeding will be conducted. For example:

• the Development Tribunal may decide the proceedings on written submissions;
• if the proceeding is to be decided on written submissions only, the Development Tribunal must give all parties a notice asking for the submissions to be made to the Development Tribunal within a stated reasonable period;
• if an actual hearing is required (with oral submissions), Development Tribunal must give notice of the time and place of the hearing to all parties; and
• the Development Tribunal may decide to undertake a site inspection (especially in respect of Enforcement Notices).

When hearing proceedings, the Development Tribunal:

• need not proceed in a formal way; and
• is not bound by the rules of evidence; and
• may inform itself in the way it considers appropriate; and
• may seek the views of any person; and
• must ensure all persons appearing before the Development Tribunal have a reasonable opportunity to be heard; and
• may prohibit or regulate questioning at the hearing.

A tribunal may, at any time during tribunal proceeding, make any direction or order that the tribunal considers appropriate. Additionally, at any time prior to the hearing date, the Registrar may ask a person to give the Registrar any information that the Registrar reasonably requires for the proceedings (including, without limitation, plans, drawings, specifications etc).

In deciding an appeal, the Development Tribunal may:

• confirm the decision; or
• change the decision; or
• replace the decision with another decision; or
• set the decision aside, and ordering the person who made the decision to remake the decision by a stated time; or
• for a deemed refusal of an application:
  • ordering the entity responsible for deciding the application to decide the application by a stated time and, if the entity does not comply with the order, deciding the application; or
  • deciding the application.

The Development Tribunal’s decision takes the place of the decision appealed against. The Development Tribunal must give a decision notice about the decision for the tribunal proceeding, other than for any directions or interim orders given by the tribunal, to all parties to proceedings.

Unlike a Court, a Development Tribunal cannot not make any order as to costs. Meaning, you will not need to pay costs to another party if your appeal is unsuccessful. Individual parties bear any costs relating to paying expert witnesses, any lawyers engaged to assist with the process (in the background) or the time taken by the party to attend the hearing or prepare submissions.

The Registrar will generally publish tribunal decisions (and make them available to the public) under the arrangements, and in the way, that the Development Tribunal decides.

Section 168(5) of the Planning Act 2016 (Qld) provides that a person must not contravene an Enforcement Notice.

At the present, the maximum penalty for contravening an Enforcement Notice is 4,500 penalty units (noting that one (1) penalty unit is valued presently at $137.85). Importantly, a person is not “off-the-hook” in respect of the Enforcement Notice by simply paying any associated fine.

A person may be compelled to comply with the terms of the Enforcement Notice as well as pay a fine for failing to comply with its requirements to begin with. Council may, for example, commence proceedings before the Magistrates Court or the Planning and Environment Court if a person fails to comply with an Enforcement Notice, or carry out the required works and recover from the person the cost of the works pursuant to the Local Government Act 2009 (Qld).

If you need expert legal advice or assistance in relation to responding to, or appealing, a Show Cause Notice or an Enforcement Notice, please contact ADVIILAW today to speak to one of our experienced litigation lawyers.

Contact us on 07 3088 7937 or email us at [email protected].

This commentary is of a general nature only, containing some general information for the reader.

It is not intended to be legal advice, nor can it be relied upon as legal advice, as each case will depend upon its own specific facts, matters and circumstances.

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