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Harris v Minister for Department of Natural Resources and Mines QPEC 66
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Harris v Minister For Department Of Natural Resources And Mines  QPEC 66
SCOTT ALEXANDER HARRIS
MINISTER FOR THE DEPARTMENT OF NATURAL RESOURCES AND MINES
113 of 2015
Planning and Environment
7 December 2018
7 December 2018
Morzone QC DCJ
PLANNING AND ENVIRONMENT – appeal on whether a development permit was required for the clearing of native vegetation – whether the enforcement notice was unlawfully interfering in respect of permits
Planning Act 2016 (Qld) s 311.
Sustainable planning Act 2009 (Qld) s 473, 493(6), 590, 594.
A Skoien for the appellant
R Traves QC for the respondent
- After investigating the apparent clearing of native vegetation in an area not otherwise subject of approval, the respondent Department issued an enforcement notice to the appellant on or about the 24th of July 2015. By that process, the Department’s delegate had formed a view that the clearing was done unlawfully in the context of clearing of greater areas subject of lawful works. The enforcement notice, in short, required the appellant to restore and rehabilitate that part considered to be unlawfully cleared. The enforcement notice was challenged by an appeal to this court on the 28th of July 2015.
- The notice of appeal was amended on the 7th of September 2015, further refining the issues relevant to the appeal. After significant efforts by the parties to grapple with the genesis of the appeal, disrupted by various other goings on, including other court matters, this appeal has brought the parties to an agreement, which I draft judgment, pursuant to a settlement deed, will see this chapter of the dispute between the parties closed. In order to do so, the resolution requires the imprimatur of this court.
- The appellant leases Strathmore Station, which is located in Far Northwest Queensland near Georgetown, and is described as Lot 4 on plan SE1. The station has an area of 900,000 hectares, and is located on the alluvial plains associated with the Gilbert River. The land was originally vegetated by a mosaic of woodlands, low-open woodlands, grasslands and wetlands. It has a common boundary with part of the Staaten River National Park. As I mentioned, the clearing of concern is said to have occurred in the context of a greater clearing subject of approval.
- The appellant had commenced a process of seeking a development permit to clear native vegetation on the land in October 2013, and in that way obtained a developmental approval for clearing on the 6th of January 2014 and the 16th of September 2014, subject to conditions. The first approval contained a development permit plan which depicted the relevant areas subject of the approval. It was not until November 2014 that the respondent Department became aware of vegetation clearing outside of that area and, therefore, on its face, unauthorised.
- The Department carried out an inspection, investigated and reported on the clearing using various means, including satellite imagery. That process occupied between November 2014 and May 2015. It is reckoned that the relevant clearing occurred between the 6th of January 2014 and the 25th of April 2015, and that clearing involved areas considered as wetland or watercourse. Hence, the issuance of a show-cause notice on the 15th of May 2015, and the engagement at that stage of the appellant making representations, and in that way, reducing the extent of the area of concern.
- Such matters culminated in the issuance of the enforcement notice on the 24th of July 2015, which necessitated the Department’s delegate to form the reasonable belief that the appellant had committed or is committing a development offence.
The enforcement notice contained four planks: first, that the appellant stop carrying out all clearing of native vegetation on the land; second, that he restore, as far as practicable, areas identified as restoration areas, by reference to maps attached to the enforcement notice; thirdly, he prepare and submit to the Department for its approval a compliance program dealing with these specific actions and time periods required to make good the restoration areas, and; fourth, that he monitor and report on the progress of that restoration in those areas.
Grounds of Appeal
- While it was not disputed that clearing had occurred, the issues in the appeal focused on whether a development permit was required for the concerned clearing. The grounds of appeal, thereby, raised issues in relation to the characterisation of watercourses and wetlands, and also brought into issue matters dealing with buffers, shown in the restoration areas, whether the enforcement notice was unlawfully interfering with the lawful right to conduct development in respect of the permits, and whether the enforcement notice was too vague.
- The appeal was filed when the now repealed Sustainable Planning Act 2009 was in force. Pursuant to section 311 of the new Planning Act 2016, the appeal must be determined pursuant to the repealed Sustainable Planning Act. Section 590 of that Act provides:
590Giving enforcement notice
- (1)If an assessing authority reasonably believes a person has committed, or is committing, a development offence, the authority may give a notice (an enforcement notice) to the person requiring the person to do either or both of the following –
- to refrain from committing the offence;
- to remedy the commission of the offence in the way stated in the notice.
(8)An enforcement notice requiring any person carrying out development to stop carrying out the development may be given by fixing the notice to the premises, or the building or structure on the premises, in a way that a person entering the premises would normally see the notice.
- The process of giving an enforcement notice was subject of particular regulation, including restrictions, pursuant to section 591 of the repealed Act, as well as specific general requirements, subject of sections 592 and 593 of the Act. Further non-compliance with an enforcement notice would be met with sanction, and the relative offence provision is found in section 594 subsection (1) of the repealed Act. A person who receives an enforcement notice may appeal against the notice undersection 473 or 533 (Appeals against enforcement notices). Relevantly, here section 473 of the repealed Act provides:
473Appeals against enforcement notices
(1)A person who is given an enforcement notice may appeal to the court against the giving of the notice.
(2)The appeal must be started within 20 business days after the day notice is given to the person.
- Pursuant to section 495 subsection (4), the appeal is by way of hearing anew. In deciding the appeal, the court may make orders and directions it considers appropriate, pursuant to section 496, including, without being limiting, in section 496 subsection (2), the court may, relevantly here in subparagraph (b), change the decision appealed against. In an appeal such as this, the onus of proof falls upon the person who gives the notice, that is, the entity that gave the notice must establish that the appeal should be dismissed. So much is made clear by section 493 subsection (6) of the repealed Act.
- Having regard to the nature of the appeal, being a hearing anew, a question arises as to whether or not the court is to consider the matter in the context of whether the assessing authority has a reasonable belief at the time the notice is given, or whether it involves an assessment of whether an assessing authority (the court at this stage) has a reasonable belief in the issuance of an enforcement notice at the time of determination of the appeal. The point is probably moot, in circumstances where the focus of the relevant belief, whether to be formed at the time of issuing the enforcement notice on the 24th of July 2015 or at the present, when the matter is determined by the court, is the event or series of events of clearing between the 6th of January 2014 and the 25th of April 2015.
- As is well demonstrated by the evidence, the belief, whether at the time of issuance of the enforcement notice or at the present, was and is demonstrated to be reasonable, having regard to the temporal focal point of the clearing. The Department relies upon extensive affidavit evidence filed some significant time ago, as well as more contemporary evidence, which has been a further catalyst to the parties’ resolution in the preparation for the hearing.
- I have had the opportunity to consider the evidence contained in affidavits of Kevin Allan, an officer of the Department, in the role of regional manager, Land Services, Natural Resources, Northern Region. He was the delegate who issued the enforcement notice the subject of the appeal, and he sets out, rather exhaustively, the investigations he undertook, the material that he considered in reaching the decision to issue the enforcement notice.
- There is a further affidavit of Benjamin Clarke, who was also involved in investigating the vegetation clearing. Mr Clarke carried out again a detailed assessment, in his case a desktop assessment, identifying the areas of concern, coupled with an inspection of the land, where he was able to ground truth those areas with that which he had assessed earlier. Those matters culminated in a site inspection report, which forms part of his evidence.
- A specialist spatial analyst, Elizabeth Russell, has also contributed to the suite of evidence before the court. She carried out a desktop assessment to verify the relevant locations of the alleged watercourses and wetlands and their associated buffer widths on the land. An affidavit of Peter Binns, a specialist agricultural scientist and soil scientist, deals with the steps that would be required to control erosion and potential soil loss in the areas subject of the enforcement notice identified for rehabilitation or restoration.
- An affidavit of Hans Dillewaard, the principal botanist of the Queensland Herbarium, carried out an assessment of relevant vegetation on the land after his inspections on the ground. He has testified about remnant vegetation mapping on the property and their respective status for areas cleared. Again, he has been able to ground truth those matters. His evidence also concerns and supports matters of the recommendations for rehabilitation of the concerned clearing.
- Since the parties’ joint issue, as indicated above, about matters dealing with wetland and watercourse characterisations, there is further evidence in the matter sought to be adduced by the appellant. That evidence comprised of two expert reports, firstly, by Mr Paul Dubowski about whether particular parts of the land were a wetland or watercourse, and the second of Mr David Stanton concerning rehabilitation requirements and standards.
- A further report of Dr Andrew Daniel was relied upon by the Department. After further consideration in the matter, that report was served in November 2018 in preparation for the hearing. That report concerned the question of whether particular parts of the land were wetlands or watercourses. Dr Daniel had the advantage of considering the earlier material and reports relied upon by the appellant. The conclusions in that report and other content have, as I have said, been a catalyst in resolving the appeal by drawing parties’ particular focus upon those aspects of the case, and in doing so, they now seek a judgment in terms of a resolution agreed between them and evidenced in the settlement deed (exhibit 1).
- The parties’ resolution in the appeal requires the court’s exercise of discretion. The effect of the proposed judgment is that the enforcement notice be amended pursuant to section 496 subsection (2) (b) of the repealed Act and, thereby, substitute the pre- existing enforcement notice in that way. The amended enforcement notice contains two planks. First, the appellant is required to take the actions detailed in section 2.3 of Mr Stanton’s report about rehabilitation and restoration methodology for the land, with respect to areas particularly or expressly identified as restoration areas on maps attached to the amended enforcement notice. Secondly, the appellant is required to monitor and report on progress of restoration of those areas, in accordance with the details set out in the amended enforcement notice.
- As has been urged, I am comfortably able to conclude that the Department’s evidence well shows that the assessing authority then on the 24th of July 2015 and, indeed, the court now held a reasonable belief that the appellant has committed a development offence. Indeed, so much is undisputed by the appellant, that is, that areasonable belief was and can be formed at the relevant time dealing with the focal point of time of clearing. The contemporary evidence also supports the proposed steps to be taken by the appellant, pursuant to the amended enforcement notice, again in a way that Mr Stanton’s report has identified by way of rehabilitation and restoration into the future.
- Having considered all of the materials and been well assisted by the parties in their submissions, upon which I have relied upon heavily to orientate me around the matters required for this court’s consideration, it seems to me that the judgment ought be given in terms of the draft, and contained the amended enforcement notice and related documents as proposed.
- Consequently, I make orders in terms of the draft judgment, which I will initial and will place with the file.
Judge Dean P Morzone QC.
- Published Case Name:
Scott Alexander Harris v Minister for Department of Natural Resources and Mines
- Shortened Case Name:
Harris v Minister for Department of Natural Resources and Mines
 QPEC 66
07 Dec 2018