Maroochy Shire Council v Barns
[2001] QCA 273
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- Unreported Judgment
- Appeal Determined (QCA)
- Maroochy Shire Council v Barns[2001] QCA 273
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Maroochy Shire Council v Barns[2001] QCA 273
Maroochy Shire Council v Barns[2001] QCA 273
COURT OF APPEAL |
|
de JERSEY CJ |
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THOMAS JA |
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PHILIPPIDES J |
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Appeal No 4828 of 2001 |
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MAROOCHY SHIRE COUNCIL | Respondent (Applicant) |
v |
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JAMES BARNS | Appellant (Respondent) |
BRISBANE |
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DATE 16/07/2001 |
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JUDGMENT |
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THE CHIEF JUSTICE: I will ask Justice Thomas to deliver the first judgment.
THOMAS JA: This is an application for leave to appeal against a decision of District Court Judge Dodds sitting in the Planning and Environment Court. On 2 May last his Honour delivered reasons for judgment which contained relevant findings of fact. The last paragraph of the reasons states:
"The outcome will be that an appropriate restraining order and/or remediation order will be made. It has been suggested that if that is the outcome the parties may be able to settle an order. I will adjourn the matter for further submissions."
That remains the position. No order has been settled or made. Strictly speaking the only order that has been made is an order for adjournment. The point is taken by the respondent that the appeal is premature and I am of the opinion that it is. It may well be that there could be further dispute about the form of the relief that is to be granted.
Notwithstanding that view it may avoid further unnecessary expense to the parties if the Court indicates its view on the position upon the assumption that an injunction had actually been granted and the matter was properly before this Court.
The order foreshadowed by his Honour intended that the Maroochy Shire Council be granted an injunction to restrain the applicant from felling trees on his 154 hectare property in the Sunshine Coast hinterland. Leave to appeal is necessary under section 4.1.56(2) of the Integrated Planning Act. Such an appeal is necessarily confined to error in law or of jurisdiction, section 4.1.56(1).
The alleged error of law identified by counsel for the applicant is that his Honour erred in concluding that an increase in the logging activity by the applicant in 2000 amounted to an increase in scale or intensity of the use to which the land was put. On its face that seems to raise no more than an error of fact. In order to succeed counsel for the applicant would need to show that there was no evidence capable of sustaining such a finding.
As the reasons of his Honour demonstrate there was a deal of evidence which, on the face of it, could justify such a conclusion. There are two salient points which make a "no evidence" submission unarguable. Firstly, there is the fact that on the relevant occasion, September 2000, the applicant doubled the intensity of any prior forestry use of the land.
Secondly, that operation required the felling and removal from the land of all timber that was commercially viable with the exception, of course, of a buffer area. This involved the removal of all species of trees of eight inch or greater diameter. Unlike previous exercises there was no provision for regeneration of the prime species on the land, namely Blackbutt.
There was evidence to permit such findings to be made notwithstanding that there was contrary evidence. These matters are capable of being regarded as significant. They enable the new activity to be seen as materially different from the controlled forestry exercises that had occurred previously. Accordingly, the lawful use that the applicant sought to demonstrate was shown to have had its intensity substantially increased.
The matters to which I have referred were capable of amounting to a "material change in the intensity or scale of use of the premises" under section 1.3.5 of the Integrated Planning Act. In turn that satisfied the requirement of "material change of use of premises" in section 1.3.2. That defeats the argument relied on by the applicant that his usage in September 2000 was a continuation of an existing lawful use of the land.
His Honour identified the correct issues and the evidence permitted a finding on the primary factual issue adverse to the applicant. In my view the challenge is to a finding of fact.
Counsel on this application further sought to advance an argument that the use of land for forestry purposes raises special factors relevant to whether such use is or is not materially increased. This is said to arise from the intermittent and fluctuating nature of such activities. In my view such issues are themselves factual issues. His Honour was conscious of such matters and made mention of them in paragraph 39 of his reasons.
In my view no error of law has been identified on the part of the learned Judge.
It would also seem to be the case that his Honour made two separate findings of fact, each of which was fatal to the applicant's defence to the Council's application. In order to avoid infringing the requirements of the Environmental Protection Act the applicant needed to have been undertaking his activities lawfully and also when engaging in such activity to have taken all reasonable and practicable measures to prevent or minimise the harm.
As I have already indicated his Honour's finding on the first of these matters is beyond attack at this stage. It is therefore unnecessary to consider whether the second finding that the applicant had not taken all reasonable and practicable measures to prevent or minimise the harm reveals any error. I am prepared to say, however, that I do not see any such error in his Honour's reasons. Some criticisms were advanced by counsel for the applicant of paragraph 53 of his Honour's reasons in this regard. However, I do not think that this or any other part of his Honour's reasons discloses any legal error in reaching this second conclusion, which was independently fatal to the applicant's defence. In my view the application should be dismissed.
THE CHIEF JUSTICE: I agree.
PHILIPPIDES J: I agree.
THE CHIEF JUSTICE: The application is dismissed.
MR MORZONE: I would ask for an order for costs, if it please, your Honour.
MR DIEHM: There's nothing I can say, your Honours.
THE CHIEF JUSTICE: The application is dismissed with costs to be assessed.
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