Case Note: Logan City Council v Brookes [2020] QDC 24 – An unfixed structure is a structure under the Building Act

Jarro DCJ found that a “structure” for the purposes of the “building work” definition in the Building Act 1975 or the repealed Sustainable Planning Act 2009 did not have to be fixed to the ground.  In finding that there was an error of law in the decision of the Magistrates Court, his Honour reconsidered the Council’s complaints and found that the movement of shipping containers by the Respondent constituted assessable development for which a development permit was required.  

What was the case about?

Logan City Council issued complaints to the Respondent for contraventions of section 578 of the repealed Sustainable Planning Act 2009 (repealed SPA). The contraventions concerned the movement of shipping containers onto the Respondent’s land without an effective development permit.

Section 578 of the repealed SPA relevantly provided that “a person must not carry out assessable development unless there is an effective development permit for the development.”

Essentially, the movement of shipping containers would have required an effective development permit if it constituted assessable development, specifically carrying out building work.

The complaints were heard and dismissed by the Magistrates Court. 

In dismissing the complaints, the Magistrates Court found that a “structure” for the purposes of the “building work” definition had to be fixed[1] or permanently attached to the ground[2]. On the evidence before the Magistrates Court, it was determined that the shipping containers were not fixed and concluded that the movement of them was not “development” (namely, carrying out building work) for the purposes of the repealed SPA[3].

The Council appealed against the Magistrates Court’s decision pursuant to section 222 of the Justices Act 1886. The Council also applied for leave to adduce fresh evidence pursuant to section 223 of the Justices Act 1886, which was granted by his Honour Judge Jarro[4].

It was contended by the Council that “the learned Magistrate erred in law in finding that the shipping containers were not “buildings” or “structures” (as those terms are used in the SPA and Building Act 1975 (“BA”)), since they were required to be fixed to the ground with the consequence that movement of the shipping containers onto the defendant’s land did not comprise “assessable development” requiring a development permit.”[5]

Accordingly, His Honour considered the interpretation of “structure” given by the Magistrates Court.

Meaning of “structure” under the repealed SPA or BA

As “structure” was not defined in the repealed SPA, His Honour considered its dictionary meaning and found that a structure did not need to be fixed to the ground or permanently attached to it[6].

His Honor then considered the Building Act 1975 (BA), which defined “structure” as “includes a wall or fence and anything fixed to or projecting from a building, wall, fence or other structure”[7].

The Council, in reliance of Dilworth v Commissioner of Stamps [1899] AC 99, submitted that the term “structure” should be given its ordinary meaning, supplemented by the inclusive meaning. The term should not be limited to the inclusive meaning[8].

In his acceptance of the Council’s submission, His Honour observed that a proper interpretation of “structure” would be to give the term its ordinary meaning, subject to:[9]

“(a)      walls or fences being defined as structures too, regardless of whether they would fall within the ordinary meaning of the term; and

 (b)       objects being fixed to buildings, walls or fences or other structures being considered separate structures, such that they retain their independence, and cannot be said to ‘accrete’ to existing buildings or structures. The requirement for separate buildings and structures to be considered independently is consistent with a requirement, under the National Construction Code Volume 2, part 1.3.3, which provides that each part of a building must be classified separately.20”

Contrary to the Magistrates Court’s interpretation, His Honour found that a structure for the purposes of the “building work” definition in either the BA or the repealed SPA did not require to be fixed to the ground[10].   

Outcome of the Council’s appeal

As an error of law was found in the decision of the Magistrates Court, His Honour reconsidered the Council’s complaints.

On the evidence before His Honour, the shipping containers were moved by the Respondent onto his land. The movement of the shipping containers involved carrying out building work and constituted assessable development[11].

The Respondent, therefore, carried out assessable development without an effective development permit.  His Honour allowed the appeal and ordered that verdicts of guilty be entered in relation to the complaints.    

[1] At [25].[2] At [25].[3] At [26].[4] At [18].[5] At [20].[6] At [27].[7] Schedule 2 of the BA.[8] At [33].[9] At [34].[10] At [35].[11] At [40].