Bone v Mothershaw[2001] QDC 255

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal by Mr Bone under s.222 of the Justices Act 1886 against his conviction by a magistrate on 6 December 2000 of an offence under ss.23 and 35 of “Chapter 22 – Vegetation Protection” which was added at the end of Ordinance 1 to Chapter 1 of the ordinances published in the Gazette on 1 January 1972: see Queensland Government Gazette No. 86 page 1576 (30 November 1991) - to become part of the Local Laws of the Brisbane City Council. Specifically, the offence was one of failure to comply with the requirements contained in a notice dated 20 July 1999 issued by the Council pursuant to s. 23(4). The magistrate recorded a conviction, imposed a fine of $20,000, allowing six months to pay, and ordered Mr Bone to pay costs aggregating $6,153. Default imprisonment of six months was ordered. On 11 May 2001, his Honour Judge O'Brien, apparently in connection with the respondent’s failure to file a timely outline of argument, stayed the magistrate’s decision.

2. [2]
   The appellant’s main argument is that Chapter 22 is invalid, and in excess of the Brisbane City Council’s law making powers. There is a subsidiary argument that the Vegetation Protection Order in respect of the appellant’s land of which he was informed by letter of 2 April 1992 was invalid for failure to identify the vegetation to be protected and/or to indicate with certainty what Mr Bone might or might not do. A similar “uncertainty” argument was made in respect of the notice dated 20 July 1999. A final argument to the effect that Chapter 22 expired on 26 March 1997 pursuant to s.780 of the Local Government Act 1993 (see now s. 1215) was abandoned when the respondent demonstrated that the date prescribed by s. 780 as originally enacted was extended to 1 July 1999 by Act No. 81 of 1996 and that a notice preventing the expiry of relevant provisions of Chapter 22 was published in the Gazette on 18 June 1999.

3. [3]
   It is convenient to set out parts of Chapter 22:

“Objects

 2.(1)   The general object of this Chapter is to facilitate the protection of vegetation in the City which because of –

1. (a)
   its value to the community as –

○ part of the natural heritage; or

○ a recreational, educational or scientifc resource; or 

2. (b)
   its aesthetic value;

is worthy of protection.

3. (2)
   The specific objects of this Chapter are to promote –

1. (a)
   the protection of vegetation for its scenic values and the retention of the visual identify of the landscape character of the City; and

2. (b)
   the protection of the remnants of plant communities which were once characteristic of land now within an urban area of the City; and

3. (c)
   the retention of bushland and wetlands in the City in parcels of a size and configuration which will enable the existing plant and animal communities to survive in the long term; and

4. (d)
   the protection of rare and endangered flora and fauna species existing within the City; and

5. (e)
   the protection of habitats for native flora and fauna existing within the City; and

6. (f)
   the protection of wildlife corridors and vegetation links in the City; and

7. (g)
   the protection of vegetation serving as a natural stabiliser of the soil surface; and

8. (h)
   the protection of existing landforms such as natural drainage lines, watercourses, foreshores and steep slopes; and

1. (i)
   the protection of the recreational potential of vegetation; and

10. (j)
    the protection of the educational potential of vegetation; and

10. (k)
    the maintenance of vegetation in locations which are readily accessible to the inhabitants of the City; and

10. (l)
    the protection of vegetation which is of historic or cultural value; and

10. (m)
    the regeneration and restoration of natural vegetation.

Interpretation

3.(1)  In this Chapter –

 ...

“vegetation” means all vegetable growth and material of vegetable origin whether living or dead and whether standing or fallen.

(2)  For the purposes of this Chapter -     

1. (a)
   the vegetation to which an order relates is the vegetation in respect of which that order is made; and
2. (b)
   an order of a particular description is made by the making of a determination which expresses that such an  order is made.

...

  Proposal for vegetation protection order

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

1. (a)
   a particular tree; or
2. (b)
   a particular group of trees; or
3. (c)
   vegetation of one or more particular classes or species existing on a  particular area of land; or
4. (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.

...

Making of protection order

12.  Subject to ordinances 13 and 14, at any time after the last day for the receipt of submissions with respect to a proposal to make a protection order and while that proposal remains effective the Council may -

1. (a)
   in a case where any submission to the Council by way of objection to the making of that order is duly made –

○ after considering each submission so made, make the order, designated in the order as a vegetation protection order, to which the proposal relates; or

○ after considering each submission so made, make an order, designated in the order as a vegetation protection order, being the order to which the proposal relates with modifications resulting from matters referred to in a submission or submissions so made;

2. (b)
   in a case where no submission to the Council by way of objection to the making of that order is duly made, make the order, designated in the order as a vegetation protection order, to which the proposal relates.

  ...

Revocation of protection order

15.   The Council may at any time while that order remains effective determine that a protection order be revoked in whole or in part.

… 

Notice of making of protection order

19.(1)   As soon as practicable after the Council makes a protection order it is to cause –

1. (a)
   notice of the order to be served on each person who appears to it to be with respect to the order an affected person; and

…

Effect of vegetation protection order

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

2. (2)
   Nothing in paragaraph (1) requires the approval of the Council to destroy or interfere with any vegetation to which a current vegetation protection order relates –

1. (a)
   ...
2. (b)
   ...
3. (c)
   ...
4. (d)
   in a case where the vegetation to which the protection order relates is vegetation of any nature existing on a particular area of land, where the destruction or interference is –

...

2. (ii)
   the destruction or removal of vegetation –

○   which is included in an area of cultivation; or

○   occurring in the course of a use of land for pasturing or  grazing purposes; or

       ○   being part of any lawn or ornamental garden within the curtilage of a building

where that are of cultivation, use, lawn or ornamental garden was in existence at the commencement of this Chapter.

 ...

(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 requires 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.

(5)  A person upon whom a notice is served pursuant to paragraph (4) must not fail to comply with any requirement contained in that notice.

Offence provision

35.  A person who does any thing forbidden by this Chapter shall be guilty of an offence and shall be liable to a penalty not exceeding $5,000 and, if the offence is a continuing one, to an added penalty not exceeding $500 for each and every day which the offence continues.

It is open to anyone charged with an offence against a local law, by-law or ordinance to challenge the validity of the provisions underlying the charge by way of defence (see for example Sellars v Coleman (2000) QCA 465, in which implied constitutional rights were argued to render invalid restrictions on certain uses of Flinders Mall in Townsville) or in collateral proceedings: see for example Watson v Lee (1979) 144 CLR 374. Arguments of the kind pursued in the appeal were made before the magistrate, who rejected them.

4. [4]
   While Mr Greenwood QC (who led Mr R Maguire) for the appellant accepted that if his arguments were right many local laws would be under a cloud, adding (transcript page 10), “it is a brave man and one with deep pockets who would challenge many of these things before the Council,” the rarity of such challenges is no argument against them; such challenges have been successfully made in recent times, notably in respect of attempts at by-laws forbidding touting; see Re Gold City Council By-Laws (1994) 1 Qd R 130; and Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 BC 950 5693, 7 March 1995. Even a strong privative clause in s. 31(27)(ix) of the Local Government Act 1936 failed to defeat challenges to such by-laws in Kwik Snax Mobile Industrial & General Caterers Pty Ltd v Logan City Council (1994) 1 Qd R 291 and Paradise Projects Pty Ltd v Gold Coast City Council (1994) 1 Qd R 314.

5. [5]
   The argument on the appeal did not require much reference to the facts of the case. The rather verbose letter of 2 April 1992, which Mr Bone acknowledges receiving advised him that:

“Pursuant to Chapter 22 of its 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.”

There are maps which bear the same date as the Order which indicate that “all vegetation” is included (rather than vegetation of a particular species, groups of trees or vegetation of a particular class), that the “protection category” is vegetation of any nature existing on a particular area of land and that the “Reason for Order” is that “The vegetation forms part of the original plant community and constitutes a valuable natural habitat.” The order was made following, and presumably contrary to a submission made by Mr Bone pursuant to his entitlement to do so in face of a proposal for such an order. No submissions were made regarding the merits of the Order’s being made although it was contended the Order was too wide.

6. [6]
   At some point, substantial amounts of vegetation on Mr Bone’s properties (at 267 and 257 Gardner Road, Rochedale) were destroyed. Although the Council’s notice under s.23 (4) of 20 July 1999 accuses Mr Bone of that destruction, he has not been prosecuted on that account, as he might have been under s. 23(1). The charge as successfully prosecuted was failure to comply with the notice of 20 July 1999 by which Mr Bone was “required to undertake...actions to (the Council’s delegate’s) satisfaction and for the purpose of replacing the destroyed vegetation, within the times... specified”. Essentially, what was required was a “Rehabilitation Program for the entire area ... on or before 13 August 1999 for approval.” Certain parameters, including time limits, were specified with which the Rehabilitation Program was to comply. The notice identified a contact person within the Council, suggested that advice might be obtained regarding accepted Bushland Rehabilitation Performance Standards from Greening Australia (Qld) and warned Mr Bone:-

“Please note that failure to undertake any of the required actions will be in breach of local law 23(5) of the Vegetation Protection Local Laws and make you liable to further penalties under the provisions of the Local Laws.”

7. [7]
   Mr Bone has done nothing, founding his inaction on his claim of invalidity of Chapter 22 as a whole, the 1992 Order or the 1999 Notice. I understand him to complain of the amount of penalty imposed. While the sum of $20,000 is substantial, Mr Hinson SC, for the respondent, has submitted that it is not excessive having regard to the maximum of $127,500 which might have been imposed, being the aggregate of $5,000 for the basic offence and $500 per day for the 245 days between 14 August 1999, when the rehabilitation program was required and 17 April 2000 when the complaint was laid. If the conviction stands, the penalty cannot be regarded as outside the range of a sound sentencing discretion. I think the community now expects penalties that visit real pain upon offenders to be meted out in respect of environmental-type offences.

8. [8]
   I confess to certain misgivings regarding the circuitous approach taken to getting Mr Bone punished. Many might prefer to see him dealt with for destroying vegetation or for failing to comply with a rehabilitation program, rather than for failing to submit such a program (viz, a piece of paper). On the other hand, there are practical considerations favouring the procedure adopted by the Council: it did not have to devote its own resources to formulating a rehabilitation program – and Mr Bone’s scope to quibble would be limited in respect of any program devised and submitted by him. No submissions were made on Mr Bone’s behalf that the procedures invoked against him were in any respect inappropriate, much less an abuse.

9. [9]
   Another aspect which might have been (but was not) the subject of submissions was the scope allowed by Chapter 22 for the impact of a Vegetation Protection Order on a land owner to be ameliorated, even completely removed, over and above the availability of a long list of exemptions for activities covered in s.23. I have observed in another context that in practice Vegetation Protection Orders often are not allowed to stand in the way of useful development (see Vynotas Pty Ltd v Brisbane City Council (2001) QPELR 14, 39). Given the way in which the proceedings have been conducted, I think this court has to deal with Chapter 22 and the making of a vegetation protection order under it as if that might be absolute and irrevocable. This would be consistent with the approach of Muir J (dissenting) in Coleman v Sellars:

“33.  The prohibition in respect of public demonstrations and addresses in By-law 8(2) is not absolute. A person wishing to do a thing prohibited by the By-law may seek a permit to do it. However, any application must be in writing in a prescribed form. It must be lodged with the Council and accompanied by the prescribed fee and ‘such other information as the Council may require’. By-law 8(4) gives the Council an unqualified right to refuse the permit. the Council may impose ‘such conditions as the Council shall think fit’ in respect of a granted permit. There are no restrictions on the length of time for determining any such application. Nor are there any prescribed limits on the conditions that the Council is able to impose.

34.  The restrictions thus placed on a person’s ability to take part in a public demonstration or public address are such as to make the relevant freedom of communication illusory or nearly so. The freedom exists only at the whim of the Council. Yet a ‘public demonstration’ or  ‘public address” in order to be effective, or even to have a point, may need to be held or given within days or even hours of a matter arising, or before an event takes place. To give some simple examples, there may be a question of whether certain persons should be deported or permitted to enter the country for a limited period, or concerning whether certain roads and offices should be temporarily closed to facilitate a visit by a Head of State.

35.  A determination of the Council is challengeable by judicial review proceedings under the Judicial Review Act 1991, but for reasons just discussed, that procedure is unlikely to provide an effective remedy against arbitrary decision-making on the part of the Council. The absence of prescribed criteria to be applied in determining applications for permits also impedes effective judicial review.”

Without the expansion resorted to by Muir J, Pincus JA said:

“7.  We rejected an application made by Mr Cooke QC, who, leading Mr D Williams, was allowed to intervene on behalf of the Council, to adduce further evidence. The purpose of such evidence was to support the conviction, by showing that in various respects the Council had acted reasonably in controlling public addresses under its by-laws. In my view, if the by-law was unlawful when it was made and, subsequently, Council acted impeccably in relation to it, that would not validate the by-law. For example, if the Council freely and promptly granted written permits to take part in public addresses in the malls, that would not matter if the by-law was invalid at its inception. I note than in s 92 cases it has been consistently held that ‘[i]f I cannot lawfully prohibit altogether, I cannot lawfully prohibit subject to an absolute discretion on my part to exempt from the prohibition': Hughes & Vale Pty Ltd v New South Wales (1954) 93 CLR 1 at 26: Boyd v Carah Coaches Pty Ltd (1979) 145 CLR 78 at 84, Ackroyd v McKechnie (1986) 161 CLR 60 at 68.”

Jones J was in general agreement with Pincus JA, but went out of his way to express some confidence in the efficacy of judicial review procedures, in paragraph 61 of his reasons.

10. [10]
    The appellant argued that Chapter 22 was beyond the Council’s ordinance making powers which, at the relevant time, were conferred by s.36 of the City of Brisbane Act 1924-1989:

“36.   Powers and jurisdiction of the Council.

(1)  The Council shall be charged with the government of the City, and shall have the control of the working and business of such government.

(2)  The Council shall have full power and duty to make ordinances for promoting and maintaining the peace, comfort, education, health, morals, welfare, safety, convenience, food supply, housing, trade, commerce, and manufactures of the City and its inhabitants and for the planning, development, and embellishment of the City and its inhabitants, and for the direction, administration, and control of the working and business of the government of the City, and shall cause all ordinances to be duly carried into effect. And generally all such ordinances may be made and carried into effect by the Council as may be determined by it to be necessary for the proper performance of the powers and duties of the Council, whether the subject matter be within the express powers conferred by this Act upon the Council or not.

3. (3)
   Without limiting the generality of its powers, the Council shall have and possess express powers in relation to the following matters: - The provision, construction, maintenance, management, control, and regulation of the use of roads, bridges, tunnels, ferries, subways, viaducts, culverts, and other means of public communication; public parks, aviation grounds, recreation grounds, and other public places; reserves and lands vested in it or placed under its control either permanently or temporarily; markets; baths and bathing places; tramways, motor omnibuses, omnibuses, and other means of public transportation; traffic; public health, sanitation, cleansing and scavenging, prevention and suppression of infectious and other diseases, sewerage, drainage, removal, suppression and abatement of nuisances, noxious and offensive trades, public conveniences; abbatoirs; milk supply, supply of water; disposal of the dead; subdivision of land and use and occupation of land; buildings and use and occupation of buildings; protection from fire; boundaries and fences; opening, closing, aligning, widening, altering, and grading of roads; eradication and destruction of noxious weeds and pests; pounds and impounding; promoting tourism; the environment; the accounts and audit of the accounts of the City; and generally all works, matters, and things in its opinion necessary or conducive to the good government of the City and the well being of its inhabitants.

Furthermore the Council shall, subject to this Act and to any alteration by ordinance, be deemed to possess all the powers, rights, privileges, and authorities and to be subject to all the liabilities, duties, obligations, and responsibilities of a Local Authority under the Local Authorities Act and the Health Act and any other Act conferring powers, rights, privileges, or authorities, or imposing liabilities, duties, obligations, or responsibilities on a Local Authority.

The power of the Council to make ordinances and in particular its power to make ordinances in relation to sewerage, drainage, the removal, suppression and abatement of nuisances and noxious and offensive trades, shall include power to make from time to time all such ordinances as are necessary or convenient to prevent the pollution of, or the creation of any nuisance in relation to, any tidal water or tidal land within or abutting upon the Area of the City of Brisbane by the discharge, putting or casting thereinto or thereon from within such Area of sewage, or any filth, rubbish, refuse or other substance or thing: Provided that the provisions of  this paragraph apply so as not to limit any provision of “The Health Acts, 1937 to 1958,”     or “The Harbours Acts, 1955 to 1959,” save that a person shall not be liable to be convicted both under any such provision and under any ordinance made in pursuance of this paragraph in respect of any act or omission which is an offence against both.

...

(7)   Notwithstanding anything to the contrary contained in this Act and without limiting the generality of the power and duty conferred on the Council by this section, the Council shall have, and is hereby declared to have always had, full power to make ordinances in relation to the matters mentioned in this section.”

The argument, as succinctly set out in the appellant’s written submissions was:

“23. This section was considered in Lynch v Brisbane City Council [1961] Qd R 463 by Sir Owen Dixon. His Honour said:

‘They give a power to lay down rules in 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. The words are not to be applied without caution or 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 a city and its inhabitants, they are not to be read as going beyond the accepted notions of local government”.

24. When Chapter 22 was introduced, it was without precedent in Queensland, and therefore ‘plainly beyond the accepted notions of local government’.”

11. [11]
    The passage quoted from Dixon CJ is at page 480 and in the course of a discussion of s. 36 which emphasizes its width as a source of ordinance making power. Dixon CJ said at 476:

“That is a long old fashioned provision although it is divided into seven subsections. It is perhaps as well to mention at once the seventh because that reverts to all of the topics mentioned in the six previous subsections: ‘Notwithstanding anything to the contrary contained in this Act and without limiting the generality of the power and duty conferred on the Council by this section, the Council shall have, and is hereby declared to have always had, full power to make ordinances in relation to the matters mentioned in this section.’ The possible importance of this provision lies in the fact that although subs. (2) confers a power to make ordinances for purposes expressed in very general terms, subs. (1), without referring to ordinances charges the Council with the government of the city and the control of the working and business of such government, and subs. (3) without mentioning the word ordinances or any other method of exerting power engages in a long and jumbled enumeration of subjects ‘ in relation to’ which the Council shall have and possess express powers’.

Under sub.s (2) ordinances may be made for ‘promoting and maintaining’, among many other objects ‘the peace, comfort, ... welfare, ... convenience of the city and its inhabitants’. Subjects mentioned in subs. (2) include ‘subdivision of land and use and occupation of land; buildings and use and occupation of buildings’. The enumeration ends with the words ‘and generally all works, matters, and things in its opinion necessary or conducive to the good government of the city and the wellbeing of its inhabitants”.

12. [12]
    Reference was then made to the ordinance under consideration whose leading provision prohibited stalls on land for sale and display of goods without a licence. The Chief Justice went on:

“It seems difficult to support this very full provision controlling the use of stalls as an ordinance with respect to the ‘use and occupation of land’. As a matter of logic anything a man does, unless he is at sea or in the air, must involve him in an activity in which he relies on the support of the soil so that he ‘uses’ land in a very wide sense. But the ordinance is not ‘in pith and substance’ directed at the use made of land but at the control and supervision of ‘stalls’. Further, the description ‘subdivision of land and use and occupation of land; buildings and occupation of buildings;’ in a collection of subjects of local governing power, seems rather to point to the purpose to which land is applied rather than to the control of the activities of the inhabitants of Brisbane simply because the activities must have a locus. Counsel for the appellants reduced his argument on this head to the short statement that the use of land means doing something to or with the land. Distinctions of this kind no doubt are elusive and cannot be precise and avoid questions of degree. But the foregoing brief statement seems to point to what the words mean in s. 36(3). There is, however, much else to support the ordinance. It is to be found in the expressions set out above from s. 36(2) but there are also the concluding expressions quoted from s. 36(3). The words ‘the peace, comfort, welfare, convenience of the city and its inhabitants’ and ‘the general good government of its inhabitants’ are wide and indefinite and so are the words ‘generally all ... matters and things in the Council’s opinion necessary or conducive to the good government of the City and the well-being of its inhabitants.' But they cannot be dismissed for that reason as if they were meaningless or ineffective.”

The City of Brisbane Act provisions were distinguished from those considered in a Victorian case in which it was held that a general power to make by-laws for a single purpose of “the good rule and government for the municipality” will be interpreted very differently from the power expressed in similar language but preceded by (32) separate and distinct purposes all or most of which are concerned with the good rule and government of the municipality: it was held that the 33^rd clause could not be given its full and natural meaning. As Dixon CJ noted at 480, in s.36 the context is very different.

13. [13]
    If it be necessary to apply a “pith and substance” test, I would have no difficulty in regarding Chapter 22 as an ordinance about “the environment”, as inserted in s.36 (3) in 1990. What was said in Lynch and the outcome show there is no need to support an ordinance by reference to the “specific matters” enumerated in that subsection.

14. [14]
    If, forty years after Lynch, there is any life left in a restriction to matters within “accepted notions of local government”, I would regard Chapter 22 as dealing with such matters, which seem peculiarly suitable to be regulated at local government level. A Full High Court has relatively recently confirmed the “plenary” nature of the power to make laws for the peace, welfare and good government of a territory – in the context of colonial governments: Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1,9. In Boral Resources Pty Ltd v Johnstone Shire Council (1990) 2 Qd R 18, 24, Thomas J (Ambrose J agreeing) said in relation to the Local Government Act 1936-1987 counterpart of s.36:

“The breadth of s.30 is sometimes overlooked, perhaps because it does go further than the powers conferred elsewhere in Australia. On its introduction it was apparently regarded in local government circles as remarkable, but it has not been copied elsewhere ... I do not think that this wide power of general competence has been weakened by the gradual accumulation of further specific powers.”

15. [15]
    Presumably with an eye to s. 14B of the Acts Interpretation Act 1954 and to sub-s. (3)(f), Mr Hinson placed before the court the Hon. Terry Mackenroth’s second reading speech in relation to what became the Local Government Act 1993. Associated with this was the entrenchment of local government in the State’s constitutional arrangements by ss. 54ff of the Constitution Act 1867: see in particular s. 56(2). The Minister said:

“The present Local Government Act was introduced in 1936 when the principal focus of local government was on providing basic community infrastructure and property-related services.

Whilst these functions are still crucial, there is a growing expectation that councils should play a greater role in the social, economic and environmental well-being of their communities. There is a desire for councils to build better communities in all senses – not just the physical.

...

As to the general jurisdiction of local government, no more will the Act contain pages of specific matters over which a council may exercise control, for example, the present functions of local government are set out in section thirty of the current Act.

If the function was not listed in the old Act, legal arguments would occur on whether or not a council could actually perform the function in question. Amending legislation was also necessary to expand the list of functions.

In the proposed new Act, each local government will have the jurisdiction to make local laws and otherwise ensure the good rule and government of its area. In exercising its jurisdiction, the local government has a law making role and an executive role.

The only general limitation on a local government in the exercise of its jurisdiction is that a council has no power to make a local law which the State parliament could not make or attempt to limit the future law making role of the local government.

Where any inconsistency occurs between a State law or a local law, the State law would prevail over the local law to the extent of the inconsistency. This is the same philosophy in the Australian Constitution that applies to Commonwealth and State laws.

This is an extraordinarily wide charter for local government and represents the most autonomy and the broadest general competence power granted to any local government system in Australia.

A local government exercises its full jurisdiction within its area – its basic territorial unit. ...”

In line with those statements, the Act, and in relation to the Brisbane City Council specifically, confirms that in exercising its jurisdiction of local government, a local government has a law making role for local laws and an executive role (among other things) for the enforcement of them (s. 20) and that the Council has jurisdiction to make local laws for, and otherwise ensure, the good rule and government, of its territorial unit (s.25). Further, s. 31 enacts:

“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.”

(s.31 reflects the provisions of s.109 of the Commonwealth Constitution.)

16. [16]
    It does not seem appropriate to use the Minister’s speech, made in 1993, as an aid in the interpretation of s. 36 of the City of Brisbane Act 1924. However, in my opinion, what was said to be intended by the Local Government Bill 1993 coincides with the effect of the arrangements then existing in relation to Brisbane City Council. While not presuming to make an absolute statement, applicable in all contexts, in the present context I am prepared to say that the Brisbane City Council’s power in relation to providing for the peace, welfare, good government etc. of the City are unrestricted except where there is inconsistency with State or Commonwealth law. There is presently no need for concern based on notions of what may be a local government “matter”.

17. [17]
    The appellant based his challenge to Chapter 22 in part on what I took to be a common law policy or presumption against expropriatory measures. Mr Greenwood made his point by citing a judgment of Owen J. in T.J. Burland Pty Ltd v The Metropolitan Meat Industry Board (1968) 120 CLR 409, 415:

“From what I have said it will be seen that by-law 11 goes much further in the way of the expropriation of property without compensation than did by-law 24 and that the earlier practice by which the owners of beasts did their own slaughtering at the abbatoir has been abandoned. Nor have we before us any evidence of the kind which appears to have been given in Jones’ Case and which may, perhaps, have played some part in the decision of the majority in the High Court. It may be thought that, having regard to differences which I have mentioned between the materials which were before the Court in Jones Case and those which are now before us, the decision in the former case should be distinguished. But I myself feel – as did Street J. from whom these appeals are brought – that what was said by Isaacs J. under the head of “prima facie authority”, would, if applied to the present cases, result in the conclusion that by-law 11 is within the power to make by-laws providing for the management and control of the abattoir and the regulation and control of the abattoir and the regulation and control of its use. But with great respect to Isaacs J. and to those who agreed with him, I am unable to accept that view.

In London and North Western Railway Co. v. Evans, Bowen L.J. said:

‘... the legislature cannot fairly be supposed to intend, in the absence of clear words showing such intention, that one man’s property shall be confiscated for the benefit of others, or of the public, without any compensation being provided for him in respect of what is taken compulsorily from him. Parliament ... can, of course, override or disregard this ordinary principle ... if it sees fit to do so, but it is not likely that it will be found disregarding it, without plain expressions of such a purpose.’

I can find no such purpose expressed or necessarily to be implied anywhere in the Act.”

(By-law 11 vested in the Board certain parts of beasts which owners had slaughtered in its abbatoir “for which no payment shall be made”.)

18. [18]
    In Boral Resources at 20 Connolly J. cited Bankstown Municipal Council v Fritt (1919) 26 CLR 385, 393 as authority for distinct approaches being taken where there are “two classes” of bodies to whom powers are given to interfere with the rights of their fellow subjects, one being bodies which stand to benefit themselves alongside whatever benefits their activities may give the general public “such as railway companies”, the other bodies deriving no benefit for themselves – “municipalities, and such like bodies.”

19. [19]
    There is no relevant general provision having application to expropriation provisions of the kind encountered in s. 51(xxxi) of the Commonwealth Constitution. Similar arrangements apply in some circumstances by virtue of the Acquisition of Land Act 1967(Qld). I consider it is straining things unduly to regard the restrictions resulting from Chapter 22 as expropriation. Mr Greenwood asserted that an Order would reduce the market value of the subject property, but that seems to me not necessarily so. Many traditional activities of local governments have such an effect without justifying complaint. Mr Hinson referred to Veenhoven v Gladstone City Council (1980) Qd R 443 where challenge was made to a resolution levying cleansing charges against property owners whether or not they enjoyed the advantages of cleansing services and to Connolly J’s statement at 446 that the remedy is with the electors.

20. [20]
    There was a subsidiary point based on “the doctrine of immunity of the Crown and Crown instrumentalities” from “the statute and indeed, from the subordinate legislation of local authorities,” to quote Mr Greenwood at page 8 of the transcript. There was said to be an impermissible effect prejudicial to the Crown flowing from Chapter 22 which “necessarily affects the value of Crown leaseholds being sold, and also Crown grants of fee simple being made” (page 9). Reference was made to s.3A(1)(g) of the Queensland Building Services Authority Regulation 1992 and Re Northbuild Construction Pty Ltd (2000) 2 Qd R 600. In my opinion, the availability of Crown immunity is something to be assessed on an instance by instance basis and Crown immunity considerations play no part in determining the validity of a local law which is completely general in its expression and in no respect singles out Crown interests. (For similar reasons, I have not felt troubled by Mr Greenwood’s hypothetical example of a person whose land in Brisbane had not been cultivated before Chapter 22 was enacted requiring Council permission to harvest crops on his interpretation of s.23(2)(d)(ii), in the absence of any evidence that the example represented an actual possibility that should be taken seriously: see page 51.)

21. [21]
    A Crown interest was also raised in aid of the appellant’s next point for consideration, asserting invalidity of Chapter 22 for inconsistency with State law. I would regard this as a compelling basis for declaring invalidity even without a provision like s. 31 of the 1993 Act. It may be accepted that there is inconsistency wherever State legislation “covers the field”. The appellant also relied on what Channell J. said in Gentel v Rabbs (1902) 1 KB 160 at 166:

“A by-law is not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it makes unlawful that which the general law says is lawful. It is repugnant if it expressly or by necessary implication professes to alter the general law of the land.”

22. [22]
    The claim of repugnancy here was related to the Land Titles Act 1994, referred to as the current source of fee simple titles to land in Queensland and of assurances of such titles. Mr Bone’s title is of that kind. Six of the High Court judges in Fejo v Northern Territory of Australia (1998) 195 CLR 96, 126 said:

“Native title is extinguished by a grant in fee simple. And it is extinguished because the rights that are given by a grant in fee simple are rights that are inconsistent with the native title holders continuing to hold any of the rights or interests which together make up native title. An estate in fee simple is, ‘for almost all practical purposes, the equivalent of full ownership of the land’ (151) and confers ‘the lawful right to exercise over, upon, and in respect to the land, every act of ownership which can enter into the imagination’ (152). It simply does not permit of the enjoyment by anyone else of any right or interest in respect of the land unless conferred by statute, by the owner of the fee simple or by a predecessor in title.”

Their Honours’ quotation is of Isaacs J. in Commonwealth v New South Wales (1923) 33 CLR 1, 42 quoting in turn Challis’s Real Property (3^rd) (1911) page 218 where it was said the rights included “the right to commit unlimited waste.” The argument ran that a fee simple was granted under an Act of Parliament, not delegated legislation. It was submitted that if the fee simple were to be altered or reduced, this might only validly be done by the Parliament:

“It is for this reason that laws which have reduced usage rights have traditionally been dealt with in a substantive statute such as the Vegetation Protection Act 1999, and town planning statutes.”

In a related context, I have already expressed reservations about the importance of tradition in these matters. Chapter 22’s being allegedly unprecedented in Queensland at the time of its enactment has no significance in light of the width of s.36 and its Local Government Act counterpart. It is convenient to set out the contents of the respondent’s submission on this point. I agree with it and am happy to adopt it:

“4.  LTA (the Land Titles Act) does not create estates in fee simple. It recognises their existence. Every existing estate in fee simple was created by Crown grant. LTA provides for the registration of freehold land, registering title to and transferring interests in such land, and defining the rights of persons with an interest in registered freehold land (s.3). It does so by:-

1. (a)
   providing for the keeping of a register of freehold land (s.27);

2. (b)
   providing for the recording in the register of particulars necessary to identify lots brought under the Act, interests and instruments registered in the register, and the name f the holders of registered interests (s.28);

3. (c)
   creating an indefeasible title for a lot on the recording of particulars of the lot in the register (s.37);

4. (d)
   providing that the registered proprietor of an interest in a lot holds the interest subject to registered interests affecting the lot but free from all other interests subject to exceptions (ss 184 and 185).

5.   LTA defines “registered owner” of a lot in Schedule 2 as meaning the person recorded in the register as the person entitled to the fee simple interest in the lot.

6.   A fee simple interest is an estate of freehold which is alienable inter vivos or by will and which descends to the holder’s heirs upon the holder’s death. Nothing in Chapter 22 affects the nature or quality of an estate in fee simple or its registration under LTA or the recognition under LTA of an indefeasible title thereto.

7.  The appellant fails to articulate how Chapter 22 affects his estate in fee simple in the land. The simple fact is that Chapter 22 does not do so.”

23. [23]
    It is true that the Order under Chapter 22, while it continues in force, fetters (by attaching a penalty to carrying them out) certain activities on the land Mr Bone holds in fee simple. Many other State laws and local laws have a similar effect. It could not be contended that the Land Titles Act repeals earlier State laws to the relevant extent, nor local laws already enacted. For present purposes I think there is no distinction between State laws and local laws. I adhere to the view expressed in argument (page 34) “that the function of local government in Queensland is to exercise in a local area the functions that the State would otherwise exercise, but if the State has covered the field the local government cannot do anything inconsistent.” Instructive as the extract from Challis may be, it does not, in my view, amount to something “which the general law says is lawful” as contemplated by Channell J.

24. [24]
    The appellant relied heavily on Wenn v Attorney-General (Victoria) (1948) 77 CLR 84, in which it was held that a Commonwealth Act disclosed an intention to cover the field so far as the matter of preference in employment to discharged members of the armed forces was to be governed by law, so that a Victorian statute purporting to offer ex-service personnel an additional right was inconsistent and invalid to that extent. Mr Greenwood has not been able to point to a corresponding exhaustive statement of the rights of a fee simple land owner. Everyone’s experience is that there may be all manner of qualifications of the “rights” Challis speaks of.

25. [25]
    I turn to the appellant’s argument that the Vegetation Protection Order of April 1992 is itself invalid in terms of Ch 22. The argument is that an Order cannot be made in respect of “all vegetation”. Vegetation is defined as widely as it could possibly be. In s.5(d) “vegetation of any nature existing on a particular area of land” is what may be protected by an order. It was submitted that the words “of any nature” could not be permitted to stand as mere surplusage. The definition was said to offend a presumption that statutory words are not surplusage. It was claimed to follow that “of any nature” must either broaden the meaning of “vegetation” or limit it, and, the definition of the term being so broad, is incapable of being broadened further – with the consequence that “of any nature” must serve the function of limiting what vegetation an order may encompass. The order, it was said, could give protection only to vegetation of “any (specified or particular) nature”. It was said that a competing view that “any” might mean “every” simply revealed an ambiguity which should be resolved in the appellant’s favour.

26. [26]
    There is little attraction in the above argument. Considered alone, “vegetation of any nature” is apt to include all vegetation (of any nature). Section 5(d) seems plainly intended to operate in a more general way than the preceding paragraphs. I do not think it could be contended that any limit applied to the numbers of particular kinds or types of vegetation that could be specified in a valid order. If someone did the work and exhaustively catalogued every kind of vegetation encountered, there could be no objection that none had been left out. The reasons for the Order assigned in the maps seems to indicate such a process. It verges on the silly to say that an order in such circumstances may not use the obvious word, “all”.

27. [27]
    A related argument that the Vegetation Protection Order is vitiated by uncertainty cannot be sustained. While the letter of 2 April 1992 may be criticized (it appears to serve the function of giving reasons as well as notifying an order), the attached maps in my opinion make it quite clear what has been ordered. In my opinion, a reasonable reader would not be left in any uncertainty about what the order applied to or required. The uncertainty argument was essentially bare assertion, without particular aspects of confusion being identified.

28. [28]
    The final argument for the appellant is that the “rehabilitation notice” (as both parties called it) issued on 20 July 1999 is invalid for uncertainty, again a generalised assertion. I have commented already on the odd aspect of the whole proceeding, which sees Mr Bone punished for failing to devise a rehabilitation program, write it out and submit it to the Council, when one might expect that the Council would have devised a rehabilitation program and given a notice requiring Mr Bone within a specified time “to make such planting of vegetation”, to quote the first “dot point” in s.23(4). The appellant in this part of his case argues that this is what the Council ought to have done. However, the argument overlooks the second “dot point” which specifically permits the Council to give a notice to a person in Mr Bone’s position “to take such other action” (as is reasonably practicable and appropriate in the circumstances and is specified in the notice). In my opinion, although one might not have expected the Council to elect to take the course it did, such a course was properly open – and is not without its virtues, as noted above. I disagree with the appellant’s submission that the notice is uncertain and fails to give Mr Bone sufficient guidance as to what ought to go into the rehabilitation program he was required to submit.

29. [29]
    In the circumstances, all of the appellant’s arguments must be rejected and his appeal must be dismissed with costs to be assessed.