A Queensland homeowner was building a new house when council officers inspected a retaining wall on the property.
Ten days later, the council issued an enforcement notice. It ordered the owner to stop work and tear the wall out.
ezylegal appealed to the Development Tribunal. The tribunal set the enforcement notice aside.
At a glance
- Problem: A council issued an enforcement notice ordering a Queensland homeowner to remove a retaining wall, without first giving them a chance to respond.
- Claim against: The local council in Queensland.
- Legal basis: An appeal to the Development Tribunal under the Planning Act 2016 (Qld).
- Result: The tribunal set the enforcement notice aside.
An order to tear it out
The house was being built under a building approval. During construction, council officers came to the site, measured the retaining wall and took photos.
The council decided the wall needed a separate approval it didn’t have. Instead of raising that with the owner first, it went straight to an enforcement notice: stop work, and remove the wall.
Skipping the warning
Under Queensland’s planning laws, a council usually has to give a show cause notice before an enforcement notice. That’s a formal warning that sets out its concerns and gives you a chance to respond before it takes action.
There are limited exceptions. The council argued one applied here: the wall was nearly finished, and acting fast would stop the owner spending more on it.
Can you appeal a council enforcement notice?
Yes. In Queensland, many enforcement notices about building work can be appealed to the Development Tribunal, a cheaper and less formal alternative to court. You generally only have a short window to lodge the appeal, so act quickly.
ezylegal lodged the appeal and argued the notice should be set aside because:
- the council failed to give a show cause notice first
- the notice didn’t clearly describe the alleged offence or what the owner had to do
- as a matter of discretion, the notice identified no practical harm caused by the wall
The tribunal visited the site and heard from both sides.
The outcome
The tribunal found the wall was already complete when the council inspected it, so the council’s reason for skipping the show cause notice didn’t hold up. A show cause notice would have put the owner on notice just as well, and given both sides a chance to resolve the disputes properly.
The tribunal set the enforcement notice aside.
If you’re facing something similar
If your council has issued an enforcement notice about building work:
- check the date you received it, because appeal deadlines are short
- check whether you were given a show cause notice first
- keep your building approval, plans and certifier’s documents together
- take dated photos of the work as it stands
A council notice isn’t always the final word. A tribunal appeal can be the fastest way to challenge it, and a property lawyer can tell you whether you have grounds.