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ARTICLE · 27 SEPTEMBER 2016

Can an enforcement notice be challenged during a prosecution?

Corrs Chambers Westgarth
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These decisions clarified Queensland law about the validity of a challenge to an enforcement notice during a prosecution.

AustraliaReal Estate and Construction
Leanne O'Brien
Leanne O'Brien
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While there have been competing UK and interstate decisions dealing with whether a recipient of an enforcement notice has the right to challenge the validity of that notice at trial, two recent decisions – by the District Court and the Court of Appeal – have clarified the law on this point in Queensland.

When a regulating authority has decided to prosecute for failing to comply with an enforcement notice, one option for the recipient of the notice has been to seek to challenge the validity of it during those quasi-criminal proceedings rather than having pursued his or her right to appeal or bring an application for declaratory proceedings in the Planning and Environment Court1.

The timing and the jurisdiction in which to challenge has always raised a practical problem for the prosecutor who has prepared a case to prosecute an offence, yet is forced to defend an application at trial that the notice in invalid.

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