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Bone v Mothershaw[2002] QCA 120

Reported at [2003] 2 Qd R 600

SUPREME COURT OF QUEENSLAND

CITATION:

Bone v Mothershaw [2002] QCA 120

PARTIES:

ROBERT NEVILLE BONE

(appellant)

v

JOHN WILLIAM MOTHERSHAW

(respondent)

FILE NO/S:

CA No 294 of 2001

DC No 130 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

12 April 2002

DELIVERED AT:

Brisbane

HEARING DATE:

26 February 2002

JUDGES:

McPherson and Williams JJA and Byrne J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

Application for leave to appeal dismissed with costs.

CATCHWORDS:

STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – REPUGNANCY – IN GENERAL – REPUGNANCY TO AUTHORIZING STATUTE – whether a law prohibiting the removal of and forcing the replacement of trees on private property is valid - where s 36 (3) of the City of Brisbane Act 1924 was amended to include the words “the environment”.

STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – UNREASONABLENESS – PARTICULAR CASES - where the by-law could be read to be beyond the power of the organisation - whether the legislation’s validity can be tested in that way.

STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – VAGUENESS AND UNCERTAINTINY – IN GENERAL – where the word “any” was used – whether the order made under the by-law exceeded the limits of the by-law – where the subject of an order is required to take action to the satisfaction of the local authority – where the provision suffers from fatal uncertainty.

STATUTES – BY-LAWS AND REGULATIONS – VALIDITY – REPUGNANCY – IN GENERAL – REPUGNANCY TO GENERAL LAW – where a by-law is inconsistent with general or common law – whether the result is an invalid by-law.

Acquisition of Land Act 1967

City of Brisbane Act 1924

City of Brisbane Ordinances, Chapter 22

Integrated Planning Act 1997

Land Act 1962

Local Government Act 1993

Vegetation Management Act 1999

Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, considered

C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 400, distinguished

Commonwealth v New South Wales (1923) 33 CLR 1, considered

Commonwealth v Tasmania (Dam Case) (1983) 158 CLR 1, considered

Cullis v Ahern (1914) 18 CLR 540, applied

Durham Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501, applied

Fejo v Northern Territory of Australia (1998) 195 CLR 96

Fraser v Hemming [1911] St R Qd 139, applied

Ibralebbe v The Queen [1964] AC 900, considered

Jerusalem Jaffa District Governor v Suleiman Murra [1926] AC 321, applied

King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184, considered

Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291, distinguished

London County Council v James [1912] 2 KB 504 considered

Lynch & Standon v Brisbane City Council (1961) 104 CLR 353, considered

Mitchell v Lemm (1908) 3 HKLR 75, considered

R v District Court of the Northern District of Queensland; Ex parte Thompson (1968) 118 CLR 488, applied

Randwick Municipal Council v Rutledge (1959) 102 CLR 54, 71 considered

Riel v R; Ex parte Riel (1885) 10 App Cas 675, applied

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, considered

Widgee Shire Council v Bonney (1907) 4 CLR 977, applied

Williams v Melbourne Corporation (1933) 49 CLR 142, applied

COUNSEL:

J Greenwood QC with R Maguire for the appellant

MD Hinson SC for the respondent

SOLICITORS:

Guelf Scassola and Associates for the appellant

Brisbane City Council Legal Practice for the respondent

[1] McPHERSON JA.  This is an application for leave to appeal from a decision of a District Court Judge, who in turn dismissed an appeal from a magistrate against conviction for a contravention of a provision of chapter 22 of the Brisbane City Council’s ordinances, or “local laws” as they are now described. The applicant Mr Robert Bone, who is a farmer, is the registered proprietor of an estate in fee simple absolute in two parcels of land, one at no 247 and the other at no 267 Gardner Road, at Rochedale. One of them is, we were informed of about 40 acres in area and the other rather less. At some time in or before 1999, the two parcels were covered in vegetation consisting of native bush and trees. On 2 April 1992 the Council sent Mr Bone a notice under chapter 22 of the Council Ordinances advising that the Council had on 31 March 1992 made a vegetation protection order in respect of the vegetation on land specified on maps that were attached to the notice containing the two parcels owned by Mr Bone.

[2] At some time after that notice was given, the vegetation on Mr Bone’s land was destroyed and removed. It may have been a while before the Council discovered that this had happened; for it was not until 20 July 1999 that the Council issued an order under chapter 22 requiring Mr Bone to “undertake … actions to [the Council’s delegate’s] satisfaction and for replacing the destroyed vegetation” within specified times. Essentially, what was required by that order was the submission by Mr Bone of a “Rehabilitation program for the entire area ... on or before 13 August 1999 for approval”. The notice went on to say that failure to undertake the required action would be a breach of local law 23(5) of the Vegetation Protection local laws, which would render Mr Bone liable to penalties under those laws.

[3] Mr Bone did not comply with that notice or the order it contained. In consequence, he was prosecuted on complaint by the respondent, who is an authorised Council officer, for an offence under ss 23 and 35 of the Vegetation Protection ordinance. He was convicted and fined $20,000 by the magistrate, with six months to pay, as well as being ordered to pay costs aggregating $6,153. It is against that conviction and order that the appeal was taken to the District Court judge, from whose decision this application for leave to appeal is now brought. The parties agreed that the application before us should be treated as the hearing of the appeal.

[4] The reason why Mr Bone did not respond as required by the order of 20 July 1999 was that he claims that chapter 22, or the relevant part of it under which the order was issued, is invalid as being beyond the Council’s law-making power; and that, even if it is not, the notice or order itself was not authorised by that local law, or is uncertain. Various other grounds of invalidity were advanced in support of the application before us. Among them are that chapter 22 is inconsistent with State law, in the form of the Land Act 1962, and the Vegetation Protection Act 1999, as well as the Brisbane Town Planning ordinance; and, in addition, that it is expropriatory in nature or effect.

[5] In considering these matters, the logical starting point is the validity of chapter 22 as a legislative act of the Council. Chapter 22, which is headed VEGETATION PROTECTION, is in s 2(1) introduced by a statement that the general object of the chapter is to facilitate the protection of vegetation in the City because of its value to the community as part of the natural heritage, as a reserve, and for its aesthetic value. These objects are then enlarged upon in s 2(2) in ways that it is not necessary to reproduce in detail, but of which para (m) is: “the regeneration and restoration of natural vegetation”. After providing for the appointment of an authorised officer, s 5 of chapter 22 creates a mechanism for proposing a vegetation protection order. It is as follows:

5. If in its opinion grounds exist for considering that to make provisions for the protection of -

(a)a particular tree; or

(b)a particular group of trees; or

(c)vegetation of one or more particular classes or species existing on a particular area of land; or

(d)vegetation of any nature existing on a particular area of land;

in the City would be consistent with one or more of the objects of this Chapter, the Council may propose that an order, designated in the order as a vegetation protection order, be made by it in respect of that particular tree, that particular group of trees, the vegetation of those one or more particular classes or species existing on that particular area of land or the vegetation of any nature existing on that particular area of land, as the case may be.”

Having considered submissions received on the matter, the Council may under s 12 then make such a protection order. Once such an order is made and is still in force, the critical provision is s 23(1), which is:

23(1). A person must not destroy or interfere with any vegetation to which a current vegetation order relates without the approval of the Council."

Section 35 of chapter 22, makes it an offence, punishable with a daily penalty, to do anything forbidden by that chapter.

[6] The legislation, which came into force on 30 November 1991, was enacted by the Council under powers then conferred by s 36 of the City of Brisbane Act 1924. At that time, s 36(2) of that Act invested in the Council “full power” to make ordinances for the “peace … welfare … and … general good government of the City and its inhabitants ..”. Those words  are the traditional formula, going back to early colonial times, used to confer “the widest legislative powers appropriate to a sovereign”. Ibralebbe v The Queen [1964] AC 900, 923. Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 9-10. They have been held to admit of no inquiry by the courts as to whether, as a matter of fact or law, a particular statute is or is not a prudent exercise of the power, or is calculated to attain its particular end or object: Riel v The Queen (1885) 10 App Cas 673, 678. We are, however, concerned here not with a sovereign law-making body, but with a unit of local government, even if a large one; and the decision of the High Court in Lynch & Standon  v Brisbane City Council (1961) 104 CLR 353, 364 (Dixon J), is authority for saying that the provisions of s 36 of the Act give:

“a power to lay down rules in respect of matters of municipal concern, matters that have been reasonably understood to be within the province of municipal government because they affect the welfare and good government of the city and its inhabitants. They are not to be read without caution nor read as if they were designed to confide to the city more than matters of local government. They express no exact limit of power but, directed as they are to the welfare and good government of the city and its inhabitants, they are not to be read as going beyond the accepted notions of local government”.

[7] Section 36(3) contains a very lengthy and detailed collocation of subjects “in relation to” which the Council is invested with an equally extensive range of powers, including the maintenance, management and control of those matters. It was to s 36(3) of that legislative power that Sir Owen Dixon’s observations in Lynch & Standon v Brisbane City Council (1961) 104 CLR 353, 365 were principally directed. Despite the variety and width of the matters specified in it, one might have doubted whether, in the form in which the description stood when Lynch’s case was decided, a by-law or local law in the form of chapter 22 would have been authorised by the law-making power conferred by s 36(3). However, in 1991 the subsection was amended specifically to include in it the words “the environment”. That expression is not defined; but it plainly includes the natural environment within its scope. So read, s 36(3) is capable of authorising legislation for the maintenance, management and control of vegetation on land within the city limits. It is true that, until fairly recently, it might have been considered as going beyond accepted notions of local government for the Council to legislate as it did in chapter 22; but attitudes on such matters are liable to change over time, and it is difficult to see why the protection of vegetation cannot now be regarded as an appropriate function of local government. If it is not, then the introduction of “the environment” into s 35(3) of the Act in 1991 achieved nothing at all.

[8] Some  criticisms were directed by the applicant to the fact that, when read with the definitions of “vegetable matter” and “destroy” in s 3(1) of chapter 22, it is possible to conclude that even mowing a lawn, if it was the subject of a vegetation prohibition order, would result in a contravention of chapter 22, and that this showed that its provisions are well beyond power. But this is an extreme example, and the validity of the legislation ought not to be tested in that way. The procedure in s 12 of chapter 22 provides for the making of submissions by affected persons before a protection order is made; and, even if the Council were to be so perverse as to make an order in a case like that of a lawn, it would surely not survive challenge on judicial review unless there was something very special about the lawn in question. In my opinion, chapter 22 was within the Council’s law-making powers under s 36 and was validly enacted. I reach this conclusion independently of the provisions of s 38(4) of the Act, which, however, once the period for Parliamentary disallowance has expired, appear to place the ordinance beyond challenge on the ground of a lack of power to enact it.  See Lynch & Standon v Brisbane City Council (1961) 104 CLR 353, 365.

[9] As a separate and additional ground for invalidating the particular order in this case, the applicant founded on the provisions of s 5 of that chapter, which has been set out in full earlier in these reasons. The submission is that, when the vegetation protection order was made by the Council on 31 March 1992, the order was accompanied by maps, which delineated the area affected and specified the vegetation protection category as “Vegetation of any nature existing on a particular area of land”. The applicant accepted that the order purported to be made pursuant to s 5(d) of chapter 22, which refers to the protection of “the vegetation of any nature existing on that particular area of land”. His submission is that it was an attempt to treat s 5(d) as if it said or meant “no vegetation of any nature” in or on the area in question, or “no vegetation at all”, and that that was not how s 5 or s 5(d) was expressed. It is, however, far from being an unusual use of that form. For example, in R v District Court of the Northern District of Queensland, ex p Thompson (1968) 118 CLR 488, 491-492, Barwick CJ construed a statutory expression that recognised conscientious objection to engaging “in any form of military service” as referring to engaging “in military service at all”. In s 5, the succeeding paragraphs of that section refer first to (a) a particular tree; then to (b) a particular group of trees; then (c) vegetation of one or more classes or species; and, finally, to (d) vegetation of any nature. Paragraph (d) is exactly where one would expect to find an all-embracing provision covering vegetation of every kind. Fowler says that in this context any is a “pronominal determiner”: Fowler’s Modern English Usage (3rd ed), at 57, while Partridge speaks of any being “incorrectly used” for every or all (Eric Partridge, English Usage or Abusage, at 37). Grammatically incorrect or not, this is the sense in which it is used in s 5(d). In my opinion the vegetation protection order in the present case did not exceed the limits of s 5(d) of chapter 22. It covered all the vegetation on the land specified on the map or maps that belonged to Mr Bone.

[10] Finally, on this aspect of the application Mr Bone challenges the certainty, or it may be the clarity, of the vegetation protection order made on 31 March 1992, and notified to him by the letter dated 2 April 1992 from the Council. Section 19 of chapter 22 provides:

19(1).As soon as possible after the Council makes a protection order it is to cause notice of the order to be served on each person who appears to it to be with respect to the order an affected person;

(2)A notice … referred to in paragraph (1) is to include a statement as to the effect of the protection order.”

The letter of 2 April 1992 is designed to serve both the function imposed by s 19(1) of providing notice of the order, and that imposed by 19(2) of the protection order. It achieves neither of these purposes with resounding success. It is not until one reaches the last two paragraphs on the second page of the letter that it condescends to mention the fact that a vegetation protection order has been made, which it does partly in bold type as follows:

“Pursuant to Chapter 22 of the Ordinances, the Brisbane City Council on 31 March 1992 made a Vegetation Protection Order in respect of the vegetation specified on the attached maps. The land to which the Order relates is owned in part by you.

The letter then goes on to say that:

“Any destruction of, or interference with vegetation to which the Vegetation Protection Order relates is prohibited and thereby an offence under chapter 22 unless it is firstly approved, in writing, by the Council or falls within an exemption specified in Ordinance 23(2) of the Vegetation Protection Ordinance. Exemptions are described in detail in the attached booklet.”

[11] There is to my mind no doubt that those two paragraphs of the letter are a sufficient notice of the making of the order and of its effect.  What is objectionable is the extent to which these two relevantly straight forward items of information are buried so far deeply in the mass of prefatory material in the letter comprising a mixture of self-justification and self-congratulation for the Council’s ordinance and its policy of protecting “Brisbane’s environmental heritage”. If a local government authority is determined to purvey propaganda of this kind, it should take care to segregate it from the notification under s 19 of the two essential matters required to be provided, if necessary by reproducing it on a separate sheet entitled Vegetation Protection Order and Effect of Order, or in some other such way.  Otherwise there is a real danger that the average land owner to whom it is directed may justifiably tire of reading it long before arriving at the critical part of it and elect to throw it away. There is, however, no reason to suspect that this happened in the case of Mr Bone, who in fact made submissions in opposition to the protection order. In these proceedings he has not suggested that he was not aware of the making of the protection order or of its effect, or that the act of removing the vegetation from his land was done in ignorance of either of those events. There is therefore no substance in the applicant’s submission on this point.

[12] The validity of the rehabilitation order made on 20 July 1999 is also challenged. It is embodied in another two-page letter from the Council, which is written in much more workmanlike vein. Having referred to the fact that vegetation on Mr Bone’s properties at Rochedale had been destroyed in breach of local law 23(1) of the Council’s Vegetation Protection local laws, it records that the Council now notifies Mr Bone that he is required to take certain specified actions for the purpose of replacing the destroyed vegetation, namely the provision of:

“A Rehabilitation Program for the entire area of 267 & 257 Gardner Road, Rochedale, as hatched in red on the attached map is to be submitted to the Ecologist, Development Assessment Team East, on or before 13 August 1999 for approval”.

The letter specifies the detail to be provided in the proposed rehabilitation measures or program, together with maps, compliance times and standards, etc. On the second page it contains inclusive definitions or explanations of the terms used, some of which are adopted from chapter 22 itself.

[13] The letter of 20 July 1999 is within the authority conferred on the Council by s 23(4) of chapter 22. It provides:

(4)Where any person destroys or interferes with any vegetation in contravention of paragraph (1) the Council may for the purpose of restoring, regenerating or replacing that vegetation, by notice in writing served upon that person, require that person within the time specified in the notice -

  • To make such planting of vegetation; or
  • To take such other action;

as is reasonably practicable and appropriate in the circumstances and is specified in the notice.”

Section 23(5) requires a person on whom such a notice is served to comply with its requirements. In this instance the notice contained in the letter evidently relied on the provision in the second dot point of s 23(4) requiring the addressee “to take such other action as is … in the  notice specified”. The applicant’s objection to it is twofold. One is that Mr Bone is required to undertake the actions specified “to my satisfaction”, i.e. to the satisfaction of the writer of the letter, who is the manager of what is described as  the Council’s Development and Regulatory Services. The other is that the rehabilitation program is to address “amongst other things”, the matters of hard rubbish removal, weed control, erosion control, vegetation protection, and vegetation enhancement and regeneration.

[14] The use of expressions or standards such as “to the satisfaction of the local authority”, or of a particular officer are not uncommon in the statutes or local laws dealing with matters such as dangerous or dilapidated buildings, their removal, restoration and repair. See, for example, London County Council v James [1912] 2 KB 504, 505; Barringer v Nyngan Corporation (1953) 86 CLR 495, 502; Ex p Consolidated Press Ltd (1960) 18 WN (NSW) 261, 265. No authority was cited to show that provisions in that form result in fatal uncertainty: see, for example, Fraser v Hemming [1911] St R Qd 139, where such a provision escaped condemnation. The complaint here no doubt is that s 23(4) contains no explicit authority for using that expression in the notice, which requires the “other action” to be “specified in the notice”. I am unable, however, to accept that the inclusion of those words (“to my satisfaction”) has the consequence of invalidating the entire notice. Rather, I consider that, if not authorised by s 23(4), the result is that the notice is to be read without reference to their presence. The same applies to the expression “amongst other things” in describing the matters to be addressed in the rehabilitation program to be provided by Mr Bone. By not identifying them in the notice, the Council may have placed it beyond its power to insist upon adding other matters not already specified in the notice given on 20 July 1999; but the notice itself is not invalidated by the use of that phrase.

[15] In my opinion none of the challenges to the validity of chapter 22, or to the orders or notices issued by the Council, has been substantiated. I turn now to consider the alleged inconsistency between chapter 22 and various State statutes. Section 31 of the Local Government Act 1993 provides that:

“31.If a State law and a local law (whether made before or after the State law) are inconsistent, the State law prevails over the local law to the extent of the inconsistency”.

On behalf of the applicant, Mr Greenwood QC acknowledged that, in speaking of State law, s 31 was intending to refer to legislation passed by or under the authority of State Parliament. It is well settled that inconsistency between a local law and the general law or common law of Queensland does not result in invalidity of the local law. See Widgee Shire Council v Bonney (1907) 4 CLR 977, 982, where Griffith CJ said that the suggestion that a by-law may not add to the law was untenable, “for in that view the power to make by-laws would be absolutely nugatory”. In the same case (at 986-987), Isaacs J, quoting from a judgment in an earlier English decision, said that a by-law “must necessarily superadd something to the common law, otherwise it would be idle”. To deny a local government authority to alter or add to the general or common law would completely stultify the legislative power conferred on it.

[16] Mr Greenwood submitted that s 31 comprehended not only inconsistency in the sense of direct conflict between two laws, but also a case where the local law  has attempted to enter a legislative field already covered by State law. Such an interpretation would correspond to the way in which s 109 of the Constitution has been interpreted and also to the position as established at common law. In Cullis v Ahern (1914) 18 CLR 540, the High Court held that a Melbourne city by-law requiring lighting of motor cycles after dark was not inconsistent with a Victorian statute that imposed a similar, but verbally not quite identical, duty on motorists throughout the State. Griffith CJ, with the concurrence of Isaacs and Powers JJ, said (at 543) with reference to the State statute in question:

“That law applies to the whole of Victoria. It prescribes what I may call an irreducible minimum of obligation as to lighting of any person who drives a motor cycle within the State. But it does not follow that some other precaution may not be necessary in some parts of the State. In order to establish inconsistency between the by-law and the Statute the latter must be construed as covering the whole ground in respect of which the legislation has legislated, that is, as prescribing completely and exclusively the limits within which the liberty of drivers shall be confined. If it had been said expressly or by necessary implication that the only obligations that would be imposed upon drivers of motor cycles should be those mentioned in the Statute any attempt by a municipality to add to them would be inconsistent.”

[17] The first matter urged by the applicant is that there is inconsistency between chapter 22 and s 6(1) of the Land Act 1962, which was the relevant statute or State law of that character in force at the time when chapter 22 took effect on 30 November 1991. Section 6(1) provided:

6.  Grants and leases (1910 s.6). (1) Subject to this Act, the Governor in Council may, in the name of Her Majesty, grant in fee simple, or demise for a term of years or in perpetuity, or deal otherwise with any Crown land in Queensland.”

In a memorable observation, Pollock and Maitland once remarked that English law conceived of land ownership as being “projected on the plane of time”. Vegetation does not grow on the plane of time. But to grant a fee simple estate in land is to confer the largest interest in land that is known to the common law, and one which is said to invest in the grantee “the lawful right to exercise over, upon, and in respect to the land every act of ownership which can enter into the imagination including the right to commit unlimited waste”: Commonwealth v New South Wales (1923) 33 CLR 1, 42 (Isaacs J), recently applied in Fejo v Northern Territory of Australia (1998) 195 CLR 96, 126. Accordingly, the argument proceeds, for chapter 22 to deny a fee simple owner in Brisbane the right, liberty or power to clear vegetation from his land is inconsistent with the proprietary rights that, under s 6(1) of the Land Act, are intended to be conveyed by the Crown to a grantee of a fee simple estate in Queensland, and so is invalid by force of s 31 of the Local Government Act.

[18] It is, however, a mistake to suppose that s 6(1) of the Land Act 1962 is directed to defining the extent of the rights conferred on a grantee of land from the Crown. The section is one of several successive re-enactments of earlier statutory provisions, of which in Queensland the first was the Crown Lands Alienation Act 1860; 22 Vic No 1 (1 Pring’s Statutes 833). Section 2 of that Act, and comparable provisions of other statutes that applied here before Separation in 1859, represented the culmination of a political struggle with the imperial government over local control of the waste lands of the Crown and the revenue arising from their sale. As sovereign of Australia, the King exercised through the colonial governor as his local representative a prerogative power at common law of granting out parcels of the unalienated land of the Crown that in English legal theory was vested in him in that capacity. The immediate effect of the legislation in question was to supersede the Crown’s prerogative by a statutory power to make grants of land, and so to bring its alienation or disposal under the authority of the colonial legislature. The subject is discussed in the reasons for judgment of Windeyer J in Randwick Municipal Council v Rutledge (1959) 102 CLR 54, 71, of Brennan J in the Tasmanian Dam Case (1983) 158 CLR 1, 209-212, and in many historical accounts of the evolution of representative and responsible government in Australia. The royal prerogative is, it is well settled, displaced by legislation that covers the same subject matter: Attorney-General v De Keyser’s Royal Hotel [1920] AC 508, 560. The primary function of s 6(1) and other such legislation is facultative. Its object and effect are to confer on the Crown legislative, as distinct from prerogative, authority to grant waste lands, and so to transfer the power of doing so from the uncontrolled discretion of the Crown to the Governor in Council acting under the direction of the legislature, while at the same time limiting the range of interests that can be granted in such land to those designated in the section. Crown land may be granted, demised or dealt with only “subject to this Act”.

[19] In addition to historical considerations like these, a mere reference in a statute to an interest in land that is recognised at common law, such as an estate in fee simple, does not have the effect of transforming that interest, or the rights incidental to it, into statutory interests and rights. If it were so, s 24 of the Australian Courts Act 1828 (Imp) in introducing English law into eastern Australia would have had the effect of converting the whole of the common law received here in 1828 into a body of statute law, which, moreover, would have had the status and force under s 24 of an imperial enactment, with all the consequences which that entailed. Quite plainly, that is not what happened. The common law received in Australia under that Act was received as a body of common law and not of enacted law. A suggestion to the contrary in the Hong Kong case of Mitchell v Lemm (1908) 3 HKLR 75, 78, has been rightly condemned by Mr Wesley-Smith as “merely eccentric” (P Wesley-Smith, The Sources of Hong Kong Law, at 131, n2). The whole notion is, in any event, opposed to the established view that local laws or bylaws are capable of altering the received English law, as was recognised in Widgee Shire Council v Bonney (1907) 4 CLR 977, 982, 986-987, in the passages referred to above. Otherwise, as it was said in that case, the power to make municipal by-laws would be nugatory. The provisions of chapter 22 prohibiting an owner in fee simple of land from clearing vegetation from his land are no more inconsistent with s 6(1) of the Land Act 1962, or with s 14(1) of the current Land Act 1994, than are the provisions of the Brisbane City Council ordinances prohibiting, for example, the growing of stinking roger (tagetes minuta), the keeping of roosters or reptiles, or the lighting of incinerators on residential land, to name only a few of the many other intrusions effected by local laws upon rights of fee simple owners within the city.

[20] Two of the other State statutes with which chapter 22 is said to be inconsistent may be briefly disposed of. Part 6 of the Land Act 1994 (ss 252-274) deals comprehensively with tree clearing, permits for such clearing, and rehabilitation of denuded land. However, the provisions of that Part apply only to unallocated State land (or what used to be called unalienated Crown land): see 252; and not therefore to freehold land like that in question here. It is true that the Vegetation Management Act 1999 extends a similar regime to freehold land: s 7(1); but s 7(2) provides that that Act does not prevent a local law from imposing requirements on the clearing of vegetation in its local government area. Section 7(3) and s 7(4) explicitly declare that those requirements are unaffected by s 31 of the Local Government Act 1994 (inconsistency), which is itself there expressed to be subject to s 7(3) of the Vegetation Management Act 1999. It follows that neither of these State Acts can, to use the language of Griffith CJ in Cullis v Ahern, be described as “prescribing completely and exclusively” the limits within which the liberty of land owners with respect to vegetation is to be confined in Queensland. In the context in which chapter 22 falls to be considered here, there is no identifiable inconsistency between its provisions and either of those State statutes. In its application to Mr Bone’s land, chapter 22 does not raise any issue of inconsistency with either of the State statutes referred to.

[21] The other statute with which chapter 22 is said to be inconsistent is the Integrated Planning Act 1997. The purposes of that Act as defined in s 1.2.1 are to co-ordinate planning, to manage the process by which development occurs, and to manage the effects of development on the environment. The word “development” is defined in s 1.3.2 so as to include building work, plumbing and drainage work, and making a material change of the use of premises. Obviously it would not be possible to carry out building work on land that was completely covered by a vegetation protection order of the kind and extent imposed on Mr Bone’s land in the present case. However, if the owner of land subject to such an order proposed to “develop” the land in one of the senses defined, he would need to apply under the Integrated Planning Act to the Council for the appropriate approval to his proposal. Among the objections to granting it, the existence of the vegetation protection order might well be one. One would therefore expect that, contemporaneously with his application under that Act, he would also make application to the Council under chapter 22 for a relaxation, in whole or in part, of the vegetation protection order.

[22] Section 23(1) of chapter 22 prohibits destruction of vegetation to which a protection order relates only if it is carried out “without the approval of the Council”. Section 25 and 26 prescribe procedures by which such approval may be obtained. Such an application may in the end be unsuccessful. The Council may be entitled to refuse its approval for reasons associated wholly or partly with the destruction of the protected vegetation; but in principle that is no different from the case where development approval is refused because, for example, it may present dangers to traffic if access is sought to a main road from a particular place in the planned new development. The Integrated Planning Act does not invest an applicant under its provisions with an absolute right to obtain approval for any application he may care to make for development approval. As the assessment manager under s 3.5.11, the Council has a statutory discretion to grant or withhold in the light of all the circumstances, although it must do so in accordance with applicable principles and rules of law.

[23] This brings me to what is really Mr Bone’s fundamental complaint about the whole process of vegetation protection that has been imposed on his land under chapter 22. It is that, by the Council’s action in making the order, his land has been struck with sterility in relation to the uses he can now lawfully make of it. Except with Council approval, there is practically nothing he can do with it except continue to grow vegetation and perhaps walk on it.  His refusal or failure to recognise that this state of affairs now prevails has already cost him $20,000 in penalties, to say nothing of legal costs, his own as well as those of the Council.  For this severe limitation on his rights as owner, he has received and will receive no compensation, although he continues to enjoy the privilege of paying the rates that the Council levies on his land. The action taken by the Council was no doubt undertaken in the public interest, as it claims, of the citizens of Brisbane; but it is not they who will bear the financial disadvantages of the action taken in their interest. It is of little consolation to him to learn that, as the Council proudly proclaims in some of its material, it is the only local authority in Australia that provides this service (or some stages of it) to a land owner who is targeted completely free of charge.

[24] The question is whether our legal system permits such prohibitory action to be taken. The applicant contends that what the Council ordinance and the protection order made under it achieves is expropriatory in character and effect, and consequently invalid. Reference was made in submissions on behalf of Mr Bone to C J Burland Pty Ltd v Metropolitan Meat Industry Board (1968) 120 CLR 409, where the High Court struck down certain regulations made by the Board that vested in it, and without compensation, the property in parts of animals submitted by their owners for slaughter at the Board’s abattoirs. The Court held that regulations providing for such a taking of property were presumptively beyond the power intended to be conferred by State legislation authorising the making of delegated legislation by the Board.

[25] The present case is different. The Council has not taken any interest of Mr Bone’s, so as to attract the operation of the Acquisition of Land Act 1967 or otherwise. He retains unimpaired, for what it is worth, his estate in fee simple absolute in the land. He has been stripped of virtually all the powers which make ownership of land of any practical utility or value. There is, as is attested by an affidavit from the valuer provided at the hearing, no doubt that the value of the land has been greatly reduced.  But the law provides no remedy for this action or its consequences when it is the result of legislation validly passed under law-making authority that by its terms or nature authorises or permits such an outcome. Such was the conclusion of the Privy Council in Jerusalem Jaffa District Governor v Suleiman Murra [1926] AC 321, where, despite an express provision in the terms of the Mandate for Palestine safeguarding the civil rights of all inhabitants, an ordinance promulgated under the power conferred by the Foreign Jurisdiction Act 1890 (Imp) to legislate for peace, order and good government was upheld despite its failure to provide full compensation for the compulsory taking of springs of water. Viscount Cave LC said (at 328) that the article in the mandate did not mean:

“… that in every case of expropriation for public purposes full compensation shall be paid. Their Lordships agree that in such a case, and, in the absence of exceptional circumstances, justice requires that fair provision shall be made for compensation. But this depends not on any civil right but … upon principles of sound legislation; and it cannot be the duty of the Court to examine (at the instance of any litigant) the legislative and administrative acts of the Administration, and to consider in every case whether they are in accordance with the view held by the Court as to requirements of natural justice.”

[26] The same opinion is explicit in the reasoning of the High Court in Durham Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501, holding that a State Parliament has the legislative power to deprive a person of property without just compensation. To the objection that chapter 22 is not State legislation there are at least two answers. The first is that it was enacted under the very wide powers conferred by State legislation in the form of s 36 of the City of Brisbane Act 1924, which may be thought to have received a measure of implicit or indirect Parliamentary confirmation in ss 7(3) and 7(4) of the Vegetation Management Act 1999. The second is that it in no sense involves acquisition of Mr Bone’s property in the land. Both in purpose and effect, chapter 22 resembles the legislation in the Tasmanian Dam Case (1983) 158 CLR 1, from which it may have taken some of its inspiration, in prohibiting damage to and use of the subject land, without amounting to an “acquisition”, by the Commonwealth or anyone else, within the terms of s 51(xxxi) of the Constitution 158 CLR 1; 145-146 (Mason J); 181-182 (Murphy J); 247-248 (Brennan J); 281-285 (Deane J).  Legislation enacted by or under Parliamentary authority may, without providing compensation, prohibit and deprive or expropriate without involving acquisition; and, in the last resort, chapter 22 is placed beyond reach of challenge on the grounds of excess of power by s 38(4) of the City of Brisbane Act 1924.  See Lynch & Standon v Brisbane City Council (1961) 104 CLR 353, 365.

[27] This conclusion was questioned by the applicant on the authority of Thomas J in Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291, 306. The effect of his Honour’s decision there was to invalidate a local by-law of the Logan City Council on the ground that it was in substance an amendment to the Council’s town planning ordinance and one which had not been passed in compliance with the statutory procedures imposed by the Local Government Act. The present case is not one in which any such question arises. A local law that prohibits the destruction of vegetation on specified land is not a law that directly determines the use that may be made of land. It takes the vegetation on the land exactly as it finds it, and seeks to maintain it in that condition. However much  a prohibition may indirectly limit other uses to which the subject land may be put, it is not a “development” or change of use that is within the conventional or defined meaning of that word under the Integrated Planning Act or earlier legislation in that tradition. For that reason, it is not within the scope of the provisions for compensation in ss 5.4.1 to 5.4.2 of that Act, which are available only for “changes” in a planning scheme or planning scheme policy, or for erroneous planning and development certificates.

[28] Despite feeling a measure of sympathy for Mr Bone for the scant respect with which his rights as owner have been trampled on, an appeal against the decision below cannot in law succeed. The application for leave to appeal must therefore be dismissed with costs.

[29] WILLIAMS JA:  The facts relevant to the resolution of this appeal are fully set out in the reasons for judgment of McPherson JA which I have had the advantage of reading.

[30] Authorities such as Lynch & Standon v Brisbane City Council (1961) 104 CLR 353, in particular the passage from the judgment of Dixon J quoted by McPherson JA, demonstrate that there are limits on the power of a local authority, such as the Brisbane City Council, to enact by-laws.  Questions will sometimes arise as to whether a particular enactment goes beyond what can properly be regarded as a law directed to the welfare and good government of the city and its inhabitants. 

[31] Again to quote from Sir Owen Dixon (King Gee Clothing Co Pty Ltd v The Commonwealth (1945) 71 CLR 184 at 194):

“The common law, from the time the control of the King’s Courts over franchise and local or special jurisdictions was established, has allowed to corporations, boroughs and vestries a power to make only reasonable by-laws for the government of the members or inhabitants or parishioners.”

[32] However, as he went on to point out, since Williams v Melbourne Corporation (1933) 49 CLR 142 unreasonableness of a by-law has not been regarded in Australia as a separate and distinct ground of invalidity.  As he there pointed out at 155 in such a case the by-law will only “be invalid . . . because it is not a real exercise of the power.” 

[33] Counsel for the appellant in this case essentially attempted to contend that the by-law here was so unreasonable that it could not be said to be a law for the welfare and good government of the citizens of Brisbane applying the Lynch test.  In particular he referred to the fact that by virtue of s 23(2)(d)(ii) the mowing of lawn could even constitute a breach of a vegetation protection order.  Also, the removal of a tree blown over in a storm and thereby creating a nuisance could not be removed without council approval (of course, upon payment of the prescribed fee) unless it had “become dangerous”.  While the apparent unreasonableness of the by-law in those regards is a matter of concern, the problems thereby identified are ultimately for the elected representatives of the community and not the courts to resolve.

[34] In the result I agree with McPherson JA that the by-law in question cannot be attacked on the basis that it is not a real exercise of the power conferred on the local authority.

[35] One of the major concerns of the appellant is that the value of his property has been significantly diminished by the impact of the vegetation protection order; effectively he cannot lawfully use his property in the way in which he could immediately prior to that order being made.  Fair minded citizens would regard it as only just that a person in that position should be compensated for the loss suffered.  But as is implicit in the reasoning of the High Court in Durham Holdings Pty Ltd v State of  New South Wales (2001) 75 ALJR 501 there is no common law right to compensation in Australia where a person is deprived of property rights by a State Law; it must follow that there is no such right where the loss is occasioned by a local authority by-law. 

[36] In many instances statute law provides for compensation in such cases.  Where a change in a planning scheme reduces the value of an interest in land the owner has a right to compensation; ss 5.4.1 and following of the Integrated Planning Act 1997.  But there is no equivalent provision with respect to ch 22 of the Brisbane City Council Ordinances. 

[37] Many right thinking citizens would consider that the absence of a provision for compensation made the Ordinances unreasonable, but for the reasons given above (rather reluctantly) I must conclude that the absence of such a provision for compensation does not make the by-law invalid.

[38] I agree generally with the reasons of McPherson JA for concluding that leave should be refused in this case.

[39] The order of the court should be: Application for leave to appeal dismissed with costs.

[40] BYRNE J:  I agree with McPherson JA.

Close

Editorial Notes

  • Published Case Name:

    Bone v Mothershaw

  • Shortened Case Name:

    Bone v Mothershaw

  • Reported Citation:

    [2003] 2 Qd R 600

  • MNC:

    [2002] QCA 120

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Williams JA, Byrne J

  • Date:

    12 Apr 2002

Litigation History

EventCitation or FileDateNotes
Primary JudgmentNA--
Appeal Judgment (QCA)[2003] 2 Qd R 60012 Apr 2002-
Special Leave Refused (HCA)[2003] HCA Trans 829-refused

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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