RFI - Appendix 2 - Caravan Parks v Rockhampton Regional Council Anor 2018 QPEC 52 · MCU19/0117

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[82]   The answer to this question is found in s.20C of the Acts Interpretation Act 1954
       (Qld), which relevantly provides:

                “20C Creation of offences and changes in penalties

                       (1)     In this section –

                               Act includes a provision of an Act.

                       (2)     If an Act makes an act or omission an offence, the act or
                               omission is only an offence if committed after the Act
                               commences.”

[83]   The effect of s.20C(2) means, in this case, that an act or omission of the kind
       prescribed under s.163 of the PA will only be an offence if committed after 3 July
       2017. CPAQ cannot establish the relevant act or omission occurred after this date.
       The acts relied upon by CPAQ to establish the alleged offence occurred prior to 3
       July 2017. No offence has therefore been established against s.163 of the PA.

[84]   In my view, a contravention of s.163 of the PA could only be established by CPAQ
       if: (1) the word ‘start’ in the definition of material change of use in the PA is given
       an extended meaning to encompass ‘to continue’; and/or (2) a transitional provision
       of the PA can be identified that displaces the operation of s.20C of the Acts
       Interpretation Act 1954 (Qld).

[85]   I was not referred to any provision, or context in the PA providing a basis to extend
       the meaning of ‘start’ in the definition of material change of use to encompass ‘to
       continue’. Further, there is no provision of the PA displacing the effect of s.20C in
       the manner contemplated by s.4 of the Acts Interpretation Act 1954 (Qld). If that had
       in fact been intended, it was a simple matter for the legislature to provide for this in
       the PA.

[86]   Mr Batty, who appeared for CPAQ, submitted s.163 of the PA should be applied
       retrospectively as a means of curing the shortfall in his client’s case. This is not a
       submission I accept. Giving retrospective operation and effect to an offence provision
       is not an outcome that would, as a general proposition, be lightly reached. Clear words
       would be required in the PA to achieve this outcome, and those words would need to
       displace the effect of s.20C of the Acts Interpretation Act 1954 (Qld). As I have
       already said, no provision displacing the effect of s.20C exists in the PA.

[87]   Accordingly, I am not satisfied CPAQ has established a development offence has
       been committed under s.163 of the PA.

Has s.165(a) of the PA been contravened and a development offence committed?

[88]   The second development offence alleged to enliven the court’s power to grant
       enforcement orders is a contravention of s.165(a) of the PA. The Council’s position
       in relation to this alleged offence is unclear. The following submission was made on
       behalf of the Council in its Supplementary Outline of Submissions dated 23 October
       2018: