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Serratore v Noosa Shire Council[2019] QPEC 57

Serratore v Noosa Shire Council[2019] QPEC 57

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Serratore & Ors v Noosa Shire Council [2019] QPEC 57

PARTIES:

GIUSEPPE SERRATORE, TERESA SERRATORE, ANTONIO SERRATORE, CARMELA SERRATORE, MICHELA SERRATORE, PRISCILLA SERRATORE AND FRANK SERRATORE (BY HIS LITIGATION GUARDIANS CARMELA SERRATORE AND ANTONIO SERRATORE)

(appellants)

v

NOOSA SHIRE COUNCIL

(respondent)

FILE NO:

1781 of 2019

DIVISION:

Planning and Environment

PROCEEDING:

Application in pending proceeding

ORIGINATING COURT:

Planning and Environment Court

DELIVERED ON:

20 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

11, 17 October 2019 and 8 November 2019

JUDGE:

Rackemann DCJ

ORDER:

  1. The application for an inspection is dismissed.
  2. I will hear from the parties as to other orders or directions.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – PROCEDURE – appeal against enforcement notices given by the respondent – where the respondent made an application for nunc pro tunc orders under rr 250 and 660 of the UCPR to sanction an allegedly unauthorised site inspection – where the respondent wishes to use evidence gathered to discharge its onus in the appeal – privilege against self – incrimination – penalty privilege – where possible consequences in the event of future proceedings for offences – where the nature of the proceeding and the consequences of a favourable exercise of discretion relevant – where the respondent failed to lay a sufficient evidentiary foundation for its application

LEGISLATION:

Local Government Act 2009 (Qld), ss 129, 130 and 146

Planning Act 2016 (Qld), ss 163, 168, 174, 229 and sch 1

Planning and Environment Court Act 2016 (Qld), ss 43, 45 and 47

Planning and Environment Court Rules 2018 (Qld), r 4

Uniform Civil Procedure Rules 1999 (Qld), rr 250 and 660

CASES:

Baker v Chief Executive, Department of Natural Resources and Mines [2019] QCA 128.

Central Queensland Speleological Society Incorporated v Central Queensland Cement Pty Ltd (No 2) [1989] 2 Qd R 537.

Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] 2 Qd R 345.

Exagym Pty Ltd v Professional Gymnasium Equipment Company Pty Ltd (No. 2) [1994] 2 Qd R 129.

Gold Coast City Council v Lear & Anor [2016] QDC 215.

Howe & Anor v Harris, unreported, District Court, Maroochydore, 13 May 2005.

MC Property Investments Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 63.

Nimmo v Brisbane City Council [2006] QPEC 55.

Rich v Australian Securities & Investments Commission (2004) 220 CLR 129.

Scenic Rim Regional Council v Brecevic [2010] QPELR 491.

X7 v Australian Crime Commission (2013) 248 CLR 92.

COUNSEL:

K Wylie for the appellant

B G Rix for the respondent

SOLICITORS:

Mullins Lawyers for the appellant

Heiner & Doyle for the respondent

  1. [1]
    This is an application by the respondent (“Council”) for an order pursuant to r250 of the Uniform Civil Procedure Rules 1999 (“UCPR”), made applicable by r4 of the Planning and Environment Court Rules 2018 (“PECR”), for the inspection of the appellants’ land by a Council officer together with experts retained by the Council and for permission for them to do the things specified in r 250(3) of the UCPR during the inspection. That application seeks orders made nunc pro tunc, pursuant to r 660(3) of the UCPR, so as to, in effect, sanction an inspection that occurred on 5 August 2019. The application also seeks orders as to the further conduct of this proceeding. The appellants contend that the site inspection which occurred on 5 August 2019 was unlawful. The Council seeks the primary relief in order to overcome any objection to the admissibility of the evidence it obtained at that site inspection.
  1. [2]
    The appellants own land situated at 105 Illoura Place, Cooroibah and more particularly described as Lot 1 on RP205063. The Council issued each of the appellants an enforcement notice dated 18 April 2019. The notices were issued pursuant to s 168 of the Planning Act 2016 (“PA”) on the basis that the Council reasonably believed that the appellants had committed, or were committing, a development offence by carrying out assessable development, namely operational work by way of vegetation clearing, without a development permit. The enforcement notices asserted that satellite imagery of the property showed that extensive clearing of vegetation had taken place.
  1. [3]
    The enforcement notices required the appellants both to refrain from further committing a development offence and to remedy the effect of the offence.[1] In particular, they required the appellants to:
  1. immediately cease clearing of vegetation on the property;
  1. suitably stabilise the site to prevent movement of soils from disturbed areas;
  1. lodge an application for a development permit for operational works to reinstate the removed vegetation; and
  1. undertake rehabilitation of the area cleared of vegetation.

Orders 2 to 4 have been stayed.

  1. [4]
    The enforcement notices were issued without a show cause process and without any on-site investigation.[2] It would seem that the Council was satisfied that satellite imagery was sufficient to form the relevant belief pursuant to s168(1) of the PA.
  1. [5]
    The subject appeal was commenced on 22 May 2019.[3] It seeks orders setting aside the enforcement notices. The appeal is by way of hearing anew.[4] It is for the Council to establish that the appeal should be dismissed.[5]
  1. [6]
    By order of this Court on 18 June 2019 the issues in dispute in the appeal were defined by reference to paragraphs 7 to 12 of the Notice of Appeal. Those paragraphs are of wide purview. They put in issue the lack of particularity in the enforcement notices, the vegetation clearing, the lawfulness of any clearing, the necessity for action to stabilise the land and the requirement for a development permit in order to undertake any revegetation which is required.
  1. [7]
    On the hearing of this application, Counsel for the appellants advised that it was accepted that the satellite imagery evidence shows that there has been clearing such that the issue at the hearing will be whether the Council can establish that the clearing was unlawful, as having required a permit, or was lawful as falling within one or some of the categories of exempt development under the planning scheme referred to in paragraph 8 of the Amended Notice of Appeal.[6] The appellants will also rely, as a matter of discretion, upon the clearing being ‘exempt clearing work’ in a certain publication of the Department of Natural Resources, Mines and Energy as particularised in paragraph 9 of the Amended Notice of Appeal.
  1. [8]
    The issues in the appeal were defined to include paragraphs 11 and 12 of the Notice of Appeal, but they were not the focus of the argument on this application. Paragraph 12 denies the requirement for a development permit for the rehabilitation required by the enforcement notices. The particulars of that rehabilitation are not contained in the enforcement notices and are not the subject of any allegation in the Notice of Appeal. In paragraph 11, the appellants deny that action is required to stabilise the site. There is an affidavit of one of their experts, Mr Stanton, who supports that contention on the basis of observations he made during a site inspection. Following the filing of that affidavit, the Council consented to orders staying the effect of parts of the enforcement notices, including the requirement to stabilise the site. The Council has not sought to vary that order subsequently to the inspection which occurred on 5 August 2019. The Council’s material does not suggest a desire or need to inspect the site for this purpose and its Counsel confirmed that he was not instructed to seek an inspection on that basis.
  1. [9]
    The argument proceeded on the basis of whether the Council’s witnesses should be permitted to inspect the site (or have their inspection, in effect, sanctioned) in order to address paragraphs 8 and 9 in the Notice of Appeal. The appellants were given leave to file an amended Notice of Appeal which, to an extent, confined and further particularised its pleading including as to the categories of exempt development. They were also given leave to file a further amended Notice of Appeal to make admissions as to the clearing.
  1. [10]
    This Court’s order of 18 June 2019 contained a timetable for the parties to file and serve their material. The Council’s material was to be filed and served on or before 16 August 2019. On 30 July 2019, with the deadline for the Council’s material approaching, the manager of the Council’s development assessment unit, Kerri-Ann Coyle (“Coyle”) made an ex parte application for a warrant under s130 of the Local Government Act 2009 (“LGA”) in order to be able to enter the subject property. That warrant issued on 2 August 2019 and the property was inspected on 5 August 2019.
  1. [11]
    There had been communication between the parties in relation to a possible site inspection since shortly before this appeal was instituted. It would appear that, in response to the appellants request for a meeting, the Council asserted a need to inspect the vegetation on the site. The appellants did not give permission for a site inspection, pointing out that the Council had relied on satellite imagery for the issue of the enforcement notices.[7]
  1. [12]
    The Court’s order of 18 June 2019 required the parties to participate in a without prejudice conference to be conducted by the ADR Registrar. The Council’s solicitor wrote to the appellants’ solicitor asking for permission to inspect the land prior to the without prejudice conference. The appellants’ solicitor responded by asking for identification of the parts of the site which the Council wished to inspect and the reasons for the inspection, given past reliance upon satellite imagery. That was responded to by a letter from the Council’s solicitor which advised that the Council considered that “to assist with the mediation” it should fully inform itself as to the circumstances of the land and the removal of the vegetation and in particular identify the type of vegetation which was removed. To that end, it wanted to inspect all of the “affected areas” of the land. That was responded to by the appellants’ solicitor who advised that his clients would not consent until the Council clarified to what extent fire breaks are permitted on the land. The Council’s solicitor, in turn, responded by giving some information in relation to the fire break issue and requesting a response to the earlier request for a site inspection, bearing in mind the then proximity of the mediation. That was responded to by the appellants’ solicitor advising, amongst other things, that access would be provided on a without prejudice basis for the sole purpose of the mediation. That was followed by a separate letter giving consent to access by the Council’s bush fire expert, subject to conditions.
  1. [13]
    Coyle deposed that the application for a warrant under the LGA was made because she regarded the appellants’ position in relation to allowing entry to their land as unreasonable. It is difficult to see why she would have reached that conclusion. While access was granted on a without prejudice basis for the sole purpose of the mediation, that was in response to the Council’s request for access “to assist with the mediation”. No specific complaint was made about terms upon which the bush fire expert was to be granted access.
  1. [14]
    Once the warrant was obtained, the Council’s solicitor wrote to the appellants’ solicitor advising of its issue and of the Council’s intention to have Coyle, a local laws officer and the Council’s three consultant experts (a town planner, a bush fire expert and an ecologist) inspect the site. The appellants’ solicitor responded acknowledging that the warrant authorised Coyle to enter the property but not the expert consultants.[8] The response also advised that the appellants did not consent to entry of persons not authorised by the warrant, including the said expert consultants and that whilst such persons would not be hindered, the appellants reserved their rights, including the right to object to any evidence obtained unlawfully.
  1. [15]
    Having been put on notice as to the limits of the warrant the Council had a number of options if it wished to put the matter ‘to bed’. Assuming that it had discounted an application under s 146 of the LGA, it could have had Coyle properly execute the warrant issued under s 130 of the LGA unaccompanied by the Council’s consultant experts. She could have gathered evidence (e.g. by taking photographs and making measurements) including that which the consultant experts might have needed or desired in order to express relevant opinions. Indeed it was submitted, for the Council, that this is what might now be done, with the benefit of another warrant, if it is unsuccessful in this application. Another option would have been to, at that stage, make any application for an order pursuant to r250 of the UCPR. Instead, the Council proceeded to carry out the inspection by Coyle and the consultant experts notwithstanding that the solicitor for the appellants had pointed out the limits of the warrant and had informed the Council that it had no permission to bring its consultant experts onto the land. Further, it appears that Coyle did not show the warrant to the appellant who was present nor informed her of the matters in s 130(9)(a) of the LGA.[9] It now belatedly seeks nunc pro tunc orders under r 250 to “put this particular issue to bed”[10] without unequivocal acceptance of wrongdoing.
  1. [16]
    There was some attempt to paint the inspection as having been permitted by the appellants in circumstances where one of the appellants, who was present on the day, opened the gate and allowed entry to the Council’s contingent without the warrant having been produced and where the Council’s contingent complied with a request not to inspect sheds. The context, including the prior correspondence and the discussion during the inspection as to whether the warrant authorised inspection of the sheds, suggests that the appellant who was then present understood that the Council was purporting to inspect the property under the authority of the warrant, rather than pursuant to a new permission (not dependent on the authority of the warrant) then granted.[11] Whilst the Council does not formally admit that its inspection was unlawful, the relief now sought by the Council would not be required had the 5 August 2019 inspection been lawful. Counsel for the Council said “I’m not trying to put it as highly as saying that it was definitely by consent”. No explanation was proffered as to why the Council opted to proceed as it did in the face of the warning it had received from the appellants’ solicitor. It was submitted, for the appellants, that the Court, in determining how to exercise its discretion, should not countenance conduct of this kind.
  1. [17]
    A few days after the inspection, the Council’s solicitor wrote to the appellants’ solicitor asserting that it had not been necessary for the warrant to be formally executed because Coyle, her colleague and the three consultant experts had been permitted to enter the land. The appellants’ solicitor was also informed that the consultant experts gathered evidence (the contents of which was not specified) that was favourable to the Council’s case and would be revealed in their reports. The appellants’ solicitor was asked to state whether the evidence would be objected to on the basis previously foreshadowed. The appellants’ solicitor responded disputing that the expert consultants entered the property lawfully and advising that his clients’ position would be reserved until such time as a Council sought to rely upon the evidence it had obtained.
  1. [18]
    The subject application was filed on 26 August 2019. That application was supported by an affidavit of the Council’s solicitor and by an affidavit of Coyle. The latter affidavit includes a description of Coyle’s observations on the day and exhibits some photographs which she took. The appellants reserved their right to object to the Coyle affidavit in the event it is sought to be used at the substantive hearing. Thereafter, on 4 October 2019 the Council filed affidavits from each of its three consultant experts. Those affidavits are intended to be the evidence of those experts in the substantive hearing, but were not read in the subject application.
  1. [19]
    It was common ground that at least r250(1)(a) is engaged such that this Court has a discretion to grant the relief sought by the Council. The matter in issue was as to how that discretion ought be exercised in the circumstances. The applicant for an order in this case is a local government which has the power to (and did) cause an authorised person to make an application for a warrant to enter private property under s 130 of the LGA. Statutory provision is made, in that way, for a judicial officer to facilitate entry to private property for the purposes of gathering evidence to establish the commission of an offence. In Scenic Rim Regional Council v Brecevic[12] it was observed that such provisions may achieve a corresponding effect to r 250, but do not exclude this Court from making orders pursuant to that rule. The existence of the provision, under a separate legislative regime, does not however, in my view, mean that the discretion under r 250 should be readily exercised.
  1. [20]
    One of the factors relied upon by the appellants was the delay in bringing this application. The relief has certainly not been sought at an early stage, but, as is apparent from the history, the Council had been agitating for an inspection from a time before the appeal was instituted. It continued to seek permission for an inspection thereafter until it ultimately sought and obtained a warrant and entered the land. This application is obviously motivated by concerns that its entry onto the land was unlawful. Those facts give some explanation for the delay, although do not explain why the Council did not bring an application prior to the inspection, given that it had been alerted to the limits of the warrant. There are no consequences of the delay which would cause me to decline the relief sought in the exercise of the discretion.
  1. [21]
    It was submitted, for the appellants, that important considerations are the quasi criminal nature of the subject proceeding and the potential for evidence gained on the inspection to affect any later criminal proceedings. The enforcement notices could only have been properly issued if there was a reasonable belief that the appellants had committed, or were committing, a development offence.[13] Whether the clearing that occurred on the subject site constituted a development offence lies at the heart of the issues between the parties. It was submitted, for the Council, that the inspection was necessary having regard to the appellants contentions in this proceeding which, as has been observed, centre on the lawfulness of any clearing. That a reasonable belief as to the commission of an offence is central to proceedings of this kind is reflected in the provision which places the onus in the appeal on the respondent/Council as the authority that gave the notice even though it is the recipients of the notice who have appealed. This appropriately puts the onus on the accuser.
  1. [22]
    The evidence gathered on the site inspection might incriminate or assist in incriminating the appellants in relation to the development offence reasonable belief of which formed the basis of the enforcement notices. Indeed that is the purpose of the inspection from the Council’s perspective. The appellants cannot however, rely on the privilege against self-incrimination to object to a site inspection.[14]
  1. [23]
    It was pointed out, on behalf of the appellants, that courts do not lend their compulsive processes in aid of proceedings to expose persons to punishment or to consequences in the nature of a penalty.[15] The privilege against exposure to penalty has been said to serve the purpose of ensuring that those who allege criminality or other illegal conduct should prove it.[16] Penalties which attract the privilege include, but are not confined to, monetary exactions. Consideration must be given to the kinds of relief sought in the proceeding rather than the purpose in seeking that kind of relief or the effects on persons other than the appellants of obtaining that relief.[17]
  1. [24]
    This appeal was not instituted to impose a penalty. It was commenced by the appellants to set aside the enforcement notices. It is however, the Council which bears the onus in the appeal. The order ultimately sought by the Council is that the appeal be dismissed with the consequence that the enforcement notices are undisturbed,[18] such that the appellants will be, or continue to be, subject to the obligations in those notices some of which are currently stayed.[19] The enforcement notices were issued pursuant to an administrative scheme, provided for in Part 3 of Chapter 5 of the PA, which is separate from the regime for proceedings for offences provided for in Part 4 of Chapter 5 of the PA. The enforcement notices impose obligations on the appellants which, consistently with s 168(2) of the PA, are restraining and remedial in kind.[20] Counsel for the appellants did not contend that the discretion could not, or should not, be exercised because the inspection is in aid of proceedings (this appeal) the result of which may be that the appellants are burdened, or continue to be burdened, with obligations in the enforcement notices. There was no argument about that and I need not delay upon it because, for the reasons which follow, I am satisfied that the discretion should not be favourably exercised in any event.[21]
  1. [25]
    Counsel for the appellants pointed out that the evidence obtained on the inspection, to the extent it assisted in proving a development offence, had potential to expose, or to assist in exposing the appellants to punishment in the event of subsequent prosecution proceedings in two possible scenarios. He confirmed that it was not his submission that the discretion to grant a r 250 inspection could not properly be favourable exercised in the circumstances,[22] but made submissions to the effect that the potential consequences would be given great weight. The argument proceeded on that basis.
  1. [26]
    Counsel for the appellants first drew attention to the potential for evidence obtained on inspection to later be used in a proceeding for the development offence, the commission of which was the basis for the enforcement notices. The Council has not sought to prosecute the appellants for any development offence and its Counsel informed the Court that, on his instructions, it is not bringing any such proceeding. There is no basis to think that the Council is seeking to use, or did use, the inspection to obtain evidence for a prosecution or indeed for any purpose other than in aid of discharging its onus in this appeal. It was pointed out, for the appellants, that notwithstanding the Council’s current attitude, the possibility of a proceeding could not be excluded, noting too the breadth of the standing provisions for bringing proceedings for offences.[23]
  1. [27]
    It is unsurprising there is some possibility of evidence gathered on an inspection in a proceeding relating to enforcement being of potential assistance in a criminal proceeding for the same offence. Counsel acknowledged that this Court has, in the past, addressed that by making orders pursuant to r 250 in proceedings concerning enforcement conditional upon the evidence thereby obtained not being used in any criminal proceeding.[24] He did not take issue with the imposition of such conditions but submitted that the inspection may nevertheless impact on the accusatorial process[25] and that the knowledge obtained from an inspection may nevertheless infect the mind and shape the manner in which subsequent proceedings are pursued. To the extent that is so then the proverbial horse seems to have bolted because, as Counsel ultimately accepted,[26] it is likely to have already occurred by reason of the site inspection carried out on 5 August.
  1. [28]
    Secondly, Counsel for the appellants submitted that there is a further potential consequence of an inspection in an appeal against the issue of an enforcement notice. That is because a person who contravenes an enforcement notice commits an offence against s168(5) of the PA. The maximum penalty for that offence mirrors that in s 163(1)(b) of the PA for carrying out assessable development without a permit. There is authority for the proposition that, in a prosecution for an offence under s 168(5) of the PA, the enforcement notice itself is not susceptible to challenge.[27]It was pointed out that, to the extent that a r250 inspection assists in the appeal against the enforcement notices being dismissed (because of the evidence it provides as to the commission of a development offence), it would provide indirect support to any subsequent prosecution for contravention of an enforcement notice in a way which, if the said authority is correct, could not be challenged in the subsequent proceeding. Further, that support cannot be mitigated, for the purposes of any future prosecution, by any condition placed upon an order now made under r250. It was submitted that this sets the current proceeding apart from proceedings for enforcement orders in which the Court has previously ordered inspections subject to conditions.
  1. [29]
    It should be acknowledged that the evidence obtained on the inspection, to the extent that it establishes or assists in establishing a reasonable belief of a development offence leading to the dismissal of the appeal would not, of itself, expose the appellants to prosecution for an offence under s168(5) of the PA. That exposure will only arise if, having been unsuccessful in the current proceedings, the appellants contravene the enforcement notices and are prosecuted for that contravention. In short, whilst the evidence obtained on a r 250 inspection might assist the Council in upholding the enforcement notices, it is the subsequent contravention of the notices, rather than the orders in this appeal, which could potentially expose the appellants to prosecution for an offence under s 168(5) of the PA.
  1. [30]
    Notwithstanding the above, it is at least relevant, in the exercise of the discretion, to bear in mind the nature of the proceeding in which an inspection is sought and the consequences of a favourable exercise of discretion. In this case, the Council seeks to obtain orders authorising use of one of the Court’s compulsive processes to intrude on the appellants property rights so as to gather evidence (or, in effect authorise the past gathering of evidence) in order to establish that the appellants committed a past offence (reasonable belief of which should have been held at the time of giving the enforcement notices) in order to uphold enforcement notices which place obligations upon the appellants, contravention of which would constitute a further offence. Those are not trivialities. The relief sought under r 250 is not as of right and should not, in my view, be granted lightly in these circumstances.
  1. [31]
    It was submitted, for the Council, that the Court should take into account, in the exercise of the discretion, that the relief is sought by a local government acting to enforce the law in the public interest. That public interest does not however, obviate the need to give proper consideration to the position of the individual, whose rights are proposed to be interfered with by use of the Court’s compulsive powers in proceedings where the legislature has seen fit to place the onus on the Council and where, as part of that, it is for the Council to prove its accusation against the appellants. Further, the discretion should not be exercised favourably to the Council unless, on the material before the Court, it is proper to do so.[28]
  1. [32]
    It was submitted that the purpose of the inspection was to allow the Council to better apprise itself of the issues in the appeal, properly respond to them and to discharge the onus which it bears in the proceeding.[29] It was said, in the Council’s written submissions, that an inspection is necessary for deciding an issue in the proceeding, that without an inspection and the evidence obtained therefrom, it would not be possible to make a decision on particular issues[30] and that an inspection was “absolutely essential” in the interests of a fair trial and fair representation.[31] In the course of oral submissions, Counsel for the Council submitted that the inspection would assist even if it was not absolutely necessary.[32] It was submitted that a site inspection is the proper and best way to respond to at least the majority of the issues in the Notice of Appeal and that a site inspection will allow the Council’s witnesses to better inform the Court through their evidence.[33]
  1. [33]
    The need for the Council’s witnesses to inspect the land in order properly to respond to the positive case put by the appellants, that the clearing fell within certain categories of exempt development, might be a potential basis for a favourable exercise of the discretion. Whether an inspection is required for that purpose in this case should however, be demonstrated on the material before the Court, rather than being a matter of assertion, suspicion or assumption.
  1. [34]
    The submissions for the Council sit somewhat uncomfortably with the fact that the Council appears to have been content to rely on satellite imagery rather than endeavour, by warrant or otherwise, to inspect the land in order to form the requisite belief, before issuing the enforcement notices, on the basis that the clearing was assessable development. Greater difficulty for the Council lies in the paucity of material to support the contention that a site inspection is justified in order to facilitate the Council’s discharge of its onus and, more particularly, in order for its witnesses properly to address the positive case raised in paragraphs 8 and 9 of the amended Notice of Appeal or otherwise to facilitate justice between the parties. In short, the Council did not put on affidavit material which proved, in any meaningful or substantial way, the asserted utility of the inspection.
  1. [35]
    The affidavit of the Council’s solicitor contained a bald statement that “each of the consultants told me that he needed to visit the site”, but that part of the affidavit was objected to and Counsel for the Council agreed that it should be disregarded or struck out. The Coyle affidavit contains a description of what she did on the day and exhibits some photographs. Save for referring to her assistance to the bushfire expert to measure the width of cleared areas, her affidavit does not reveal what the Council’s consultants wished to do, or did, on the site inspection or how that related to particular matters of relevance. There was no material from the consultant experts read in support of the subject application.
  1. [36]
    Coyle deposes that “the Council wants to rely upon the evidence gathered in the course of that inspection” but whilst she outlines her observations she does not descend to identify the nature or content of the “evidence gathered” by all who were on site, or the extent to which a site inspection is or was necessary to obtain evidence of facts not otherwise proved or reasonably ascertainable, or the relevance of that to particular issues, or how or why an inspection otherwise reasonably facilitates proof of the Council’s case. There was no material read in the application from any of the experts to identify the particular issues in dispute with which they are concerned or to verify if, and if so how and why, an inspection of the site is or was required to assist them properly to address those issues, or to discharge their duties to the Court, notwithstanding any disadvantage arising from the fact that an inspection is only of the site in its post-clearing state. Further, the material did not descend to what is able to be discerned from the available satellite imagery upon which the Council relied in issuing the notices, the period of time for which imagery is available, any limitations of that imagery and its study or why a site inspection (including by the experts) is justified in order for the Council to discharge its onus having regard to those matters which can be established by a study of that imagery and any information which might otherwise be available.
  1. [37]
    The hearing of the application was stood down for a time in order to enable Counsel for the Council to take instructions as to whether to seek an adjournment in order to obtain further and better affidavit material. Upon the resumption of the hearing Counsel informed the Court that no adjournment was sought and that reliance would not be placed on any further material. As it happens, the hearing was subsequently adjourned to permit the appellants to formulate an amended Notice of Appeal, but the Council also did not seek to use that opportunity to obtain any further material.
  1. [38]
    Submissions were made on behalf of the Council to the effect that, even in the absence of further and better material, it was self-evident that there was a need to inspect the property in order for the Council properly to respond to paragraphs 8 and 9 of the Amended Notice of Appeal.[34] Submissions were made as to how and why a site inspection might be reasonably necessary, or at least of sufficient material assistance, in establishing that the clearing did not fall into the categories of exempt development relied on by the appellants. In that regard, Counsel referred to observations which might be made and evidence (including by measurement) which might be gathered. Those are dealt with later in these reasons, but it should be noted that they were just suggestions from the bar table. As has been noted, whilst there is evidence of Coyle’s observations and of her assisting in taking some measurements, there is no evidence otherwise of the particular respects in which the experts sought, or seek, the assistance of a site inspection or how and why an inspection assists in addressing any issues of relevance to them in connection with particular categories of exempt development.
  1. [39]
    Paragraph 8 of the Notice of Appeal relies on categories of ‘exempt development’ from Part 13 of the Council’s planning scheme. Argument was first based on the initial Notice of Appeal. It is only necessary to deal with those submissions which are of relevance to the issues which remain in the Amended Notice of Appeal.
  1. [40]
    The first category of exempt development is Property Maintenance Activity. That expression is defined to mean clearing protected vegetation which is reasonably necessary for property maintenance including a number of specific things. The appellants claim it was for:
  1. establishment of new fencing;
  1. establishment of firebreaks;
  1. in the course of conducting controlled burns for bushfire mitigation purposes;
  1. provision of access to water supply from on-site dams and Ringtail Creek;
  1. maintenance of emergency access roads and fences;
  1. establishment of emergency access roads;
  1. provision of access to existing structures (fencing and sheds); and
  1. provision of access to the road reserve in the north-western corner of the Subject Land.
  1. [41]
    It might well be that it would be difficult properly to address at least some of those matters without a site inspection, but that is not self-evidently so. The Court was not favoured with evidence as to the resolution of the satellite imagery or the limitations of what may be derived from its study. It might be that it is obvious from the satellite imagery that the clearing could not have been for some or all of those purposes. For example, a study of the imagery might reveal whether the clearing is in a location and of such configuration, extent and dimension such as to provide a connection suitable for an access to the road reserve in the north west corner of the subject land, or to water supply from on-site dams and Ringtail Creek or to existing structures. It might also be possible to say from the imagery whether the clearing follows the line of existing access roads and fences or is or is not of a configuration, location, extent or dimension which could be explained by one of the other specific requirements. There was no material from the Council’s bushfire expert as to the utility of either the imagery or a post clearing site inspection in determining whether the clearing was for the establishment of firebreaks or in the course of conducting controlled burns for bushfire mitigation purposes or for emergency access. Insofar as fencing is concerned, it is not known the extent to which fence lines can be identified from the imagery. Counsel for the Council acknowledged that sometimes they can.[35] Coyle deposes to seeing some apparently new fencing on site, but the site inspection would not necessarily show the full extent to which clearing had occurred for the purposes of establishing new fencing, since not all of the new fencing might yet have been erected.
  1. [42]
    Another category of exempt development is clearing which is reasonably necessary for emergency access. It was said that the Council viewed this as a potential bushfire access issue. It was not explained why a site inspection was needed or would yield significantly better information as to whether the clearing occurred to provide emergency fire access. Counsel for the Council said:[36]

“Your Honour, that may not be one where necessarily site access is required.”, and:

“I can’t put any evidence before Your Honour as to specific reason for site access for that particular sub-paragraph…other than a general submission that anything is improved by looking at the land, if I can put it that way. I can’t put it any higher than that.”

  1. [43]
    The next category of exempt clearing is where vegetation is within 10 metres of an existing structure (being fencing and sheds) and the clearing is reasonably necessary for access to the structure and the vegetation is not otherwise required to be retained in accordance with a development approval. It was said, from the bar table, that a site inspection was needed so that the 10 metre dimension could be measured more accurately than could be done by scaling from satellite imagery. There was however, no evidence as to the accuracy of measurement which can be achieved through use of the satellite imagery. It might be that the satellite imagery is sufficient to establish that the vegetation was well in excess of 10 metres beyond any existing building or structure. It might also be evident from a study of the imagery that the clearing is beyond anything reasonably necessary for access.[37]
  1. [44]
    The next category is clearing where the vegetation is within 10 metres of a structure (being fencing, sheds, electricity poles and wires in the vicinity of the south eastern boundary of the subject land and campervans and other structures on the property adjoining the south eastern boundary of the subject land) and the clearing is reasonably necessary for the control of fire risk to the structure and the vegetation is not otherwise required to be retained in accordance with a development approval. Counsel for the Council again asserted a need to inspect so as to take measurements of the required dimensions. Similarly however, that is not self-evident. The imagery might be sufficient to show that the vegetation clearing went beyond those dimensions without the need for onsite measurements. It was also pointed out that the provision requires the clearing not only to be within certain dimensions but also to be reasonably necessary for the control of fire risk to the building or structure[38]. It was said, from the bar table, that the nature of the vegetation would be relevant to that assessment. Two things should be observed. The first is that it may be unnecessary to address the second requirement if the first (as to distance) is not met. Secondly, the need to augment the study of satellite imagery and any other available information with a physical inspection of the site, in its post clearing state, in order to determine whether the extent of clearing was necessary for the control of a previous (pre-clearing) fire risk to a structure should be a matter of evidence rather than assertion or assumption.
  1. [45]
    The next category of exempt clearing is that which is done for reducing hazardous fuel loads by fire. It is, one would think, not now possible to inspect that which has been cleared away. It was submitted that it would be of assistance to inspect the nature of the vegetation that has been left behind in order to determine this issue. Whether that is so should be a matter of evidence rather than assertion or assumption.
  1. [46]
    The final category relied upon by the appellants in paragraph 8 of the Amended Notice of Appeal is the clearing of vegetation which is regrowth. That expression is defined as any vegetation that is less than 7 years of age. The Council did not explain the need to inspect (or even the utility of inspecting) the site in its cleared state in order to determine the age of that which was cleared away when it has access to satellite imagery upon which it was content to rely for the purpose of issuing the enforcement notices. Resort to historical imagery would presumably show whether the cleared areas were only recently (<7 years) vegetated. It is possible that the imagery does not date back far enough, but the Council did not provide any evidence about the extent or limitations of the imagery. It has not laid the foundation for an assertion that a site inspection is reasonably required for this purpose.
  1. [47]
    Paragraph 9 of the Notice of Appeal lists categories of exempt clearing work within the meaning of that term under the Department of Natural Resources, Mines and Energy list. There is some overlap between those categories and the categories in the Noosa Planning Scheme. One relates to reducing hazardous fuel loads. I will not repeat what I have already said about that.
  1. [48]
    One of the categories of exempt clearing work is for establishing or maintaining a necessary fire break to protect the infrastructure within 1.5 times the height of the tallest vegetation next to the infrastructure, or 20 metres whichever is the wider. It might not be possible to determine the height of vegetation from imagery, but that might not be necessary if it can be established, with the benefit of the satellite imagery, that the cleared area is not a necessary fire break to protect the infrastructure (in which case is does not fall within the exemption) or if analysis of the imagery shows it to be no wider than 20 metres, in which case the clearing would be within the narrowest permitted width of the fire break, without the need to measure the height of vegetation to establish any wider area. The Council has not demonstrated a need for a site inspection in order to measure the height of vegetation.
  1. [49]
    The next category of exempt clearing is that which is necessary to remove or reduce the imminent risk of serious personal injury or damage to infrastructure that the vegetation poses. There are no particulars of the ‘imminent risk’. It is not self-evident that the inspection of a cleared site would assist in determining whether the clearing was of vegetation which previously posed a relevant imminent risk (but is no longer there) or the extent of clearing which was necessary to remove or reduce that imminent risk.
  1. [50]
    Another category of exempt development relates to clearing for establishing a necessary fire management line up to 10 metres wide. Similar observations to those made earlier in relation to matters of measurement apply. Further, the need for a site inspection to determine whether the clearing was for that purpose should be a matter of evidence rather than assertion or assumption.
  1. [51]
    A further category of exempt clearing is that which is necessary for maintaining infrastructure. No evidence was given as to the need for a site inspection to determine whether the clearing was necessary for that purpose. It might be that analysis of the satellite imagery shows that the clearing was at such location, configuration, extent and dimension as to not be explicable by the necessity to maintain infrastructure. It is not self-evident that a site inspection is required for this purpose.
  1. [52]
    The final category of exempt clearing is that which is necessary for reasonable access to an area in order to carry out a cadastral survey to a maximum width of 10 metres. It was not explained how a site inspection is needed in order to determine whether the clearing was necessary for this reason. For the reasons previously expressed, the specification of a particular dimension does not necessarily mean that a site inspection is needed.
  1. [53]
    For the above reasons although it might well be that a site inspection is justifiable, in the interests of justice, in order for the Council and, in particular, its witnesses, properly and adequately to address the contentions that the clearing was exempt development, it is not self-evidently so. It is a matter which, if it were so, could and should have been established by affidavit material, but the Council chose not to put such material before the Court on the hearing of this application and declined the opportunity to seek an adjournment to obtain such material. The Council failed to lay a sufficient evidentiary foundation for its application.
  1. [54]
    It was also contended that an inspection would put the Council’s witnesses in a position to respond to evidence which might yet come from the appellants. I am not prepared to exercise the discretion on that speculative basis.
  1. [55]
    It was submitted, for the Council, that it is at liberty to procure another warrant to enter the land. In that event, the authorised person could execute the warrant and gather whatever evidence is desired by the experts to enable them to reach their conclusions on the issues in dispute. It was contended that this would likely be the same evidence as has already been obtained and it was submitted that the absence of any utility in forcing the Council down the path of reinspection of the property by a Council officer in order to convey to the experts that which they already know from the earlier inspection supports a favourable exercise of discretion to grant the relief sought as being the most cost effective and efficient resolution.
  1. [56]
    I do not agree that the discretion should be exercised to grant the relief sought under r 250 on that basis. The argument assumes that the Council would necessarily obtain a further warrant. It might do so, but its success should not be assumed. A Magistrate may only issue a warrant if satisfied of the things in s 130(5) of the LGA. The appellants were critical of the extent of non-disclosure of material facts in the first application. I will not dwell on those complaints. Presumably any future application will inform the Magistrate of all relevant matters.
  1. [57]
    The application for the previous warrant was made on the basis that the clearing was assessable development in the absence of a development permit and that the Council wanted to investigate the extent of vegetation clearing that had taken place. There was no mention of the fact that the clearing is only assessable development if it is not exempt development, that there was a present dispute about that or that the Council wished to enter the site to investigate that issue. Presumably any future application will disclose the true purpose of the site inspection then sought. It will be for the Council to satisfy the Magistrate of the matters in s 130(5) of the LGA in that context. It would be inappropriate to speculate about the outcome of such an application.
  1. [58]
    As for the potential for inefficiency in gathering the evidence upon which the Council will rely at the substantive hearing, the responsibility for any lack of cost effectiveness and efficiency lies at the feet of the Council. It did not exercise caution in the way it went about executing the warrant (nor explain why it did not do so), or make an application under r 250 in advance of the inspection, or support its application, when made, with material to establish the basis on which relief was sought. Orders under r 250, particularly orders nunc pro tunc to, in effect, sanction an allegedly unauthorised inspection carried out in the face of objection, are not made for the asking purely on the basis of expediency for one party in such circumstances.
  1. [59]
    The application is dismissed.

Footnotes

[1] s 168(2) of the PA.

[2] Affidavit of Coyle paragraph 14.

[3] For the right of appeal see s 229 and sch 1 of the PA.

[4] s 43 Planning and Environment Court Act 2016 (“PECA”).

[5] s 45(3) of the PECA.

[6] T1-42, T1-74.

[7] Affidavit of Coyle Exhibit 1.

[8] The warrant authorised Coyle to enter with “such necessary and reasonable help and force to enter the property and exercise the powers of an authorised person” but it was not seriously argued that this authorised entry of the expert consultants – T1-71.

[9] Affidavit of Coyle paragraphs 10, 11. Counsel conceded as much T1-65.

[10] T1-28.

[11] The requirements of s 129(2) of the LGA would have applied had the entry been in accordance with the occupier’s permission.

[12] [2010] QPELR 491 at 493.

[13] s 168(1) of the PA.

[14] Central Queensland Speleological Society Incorporated v Central Queensland Cement Pty Ltd (No 2) [1989] 2 Qd R 537.

[15] Exagym Pty Ltd v Professional Gymnasium Equipment Company Pty Ltd (No.2) [1994] 2 Qd R 129 at 131.

[16] Rich v Australian Securities & Investments Commission (2004) 220 CLR 129 at 142.

[17] Rich v Australian Securities & Investments Commission (supra) at 144.

[18] See s 47 of the PECA as to the effect of a decision on appeal.

[19] Or any changed notices to the extent the Court acts under s 47(1)(b) or (c)(i) of the PECA.

[20] See Baker v Chief Executive, Department of Natural Resources and Mines [2019] QCA 128 where it was held that giving a restoration notice under the Vegetation Management Act to a person already convicted of a vegetation clearing offence did not constitute the imposition of a penalty, although that case was concerned with double punishment rather than the penalty privilege.

[21] It may be noted that this Court has previously made orders under r 250 in proceedings for enforcement orders and that enforcement orders and orders for compensation may be made “in addition to the imposition of a penalty” in proceedings for offences – ss 176(4) and 177(3) of the PA.

[22] T1-37, T1-67.

[23] s 174 of the PA.

[24] Nimmo v Brisbane City Council [2006] QPEC 55; Scenic Rim Regional Council v Brecevic (supra); MC Property Investments Pty Ltd v Sunshine Coast Regional Council [2012] QPELR 63.

[25] X7 v Australian Crime Commission (2013) 248 CLR 92 at [124]-[125].

[26] T1-41.

[27] Gold Coast City Council v Lear & Anor [2016] QDC 215, but see Howe & Anor v Harris, unreported, District Court, Maroochydore, 13 May 2005.

[28] Evans Deakin Pty Ltd v Orekinetics Pty Ltd [2002] 2 Qd R 345.

[29] T1-18.

[30] See submissions para 31b

[31] See submissions para 31c.

[32] T1-74.

[33] T1-27.

[34] T1-4 line 42 – T1-5 line 3.

[35] T1-21 line 16.

[36] T1-25.

[37] It was not contended that the vegetation is otherwise required to be retained in accordance with a development approval.

[38] There is no suggestion that the vegetation is otherwise required to be retained in accordance with the development approval.

Close

Editorial Notes

  • Published Case Name:

    Giuseppe Serratore, Teresa Serratore, Antonio Serratore, Carmela Serratore, Michela Serratore, Priscilla Serratore and Frank Serratore (by his litigation guardians Carmela Serratore and Antonio Serratore) v Noosa Shire Council

  • Shortened Case Name:

    Serratore v Noosa Shire Council

  • MNC:

    [2019] QPEC 57

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    20 Nov 2019

Appeal Status

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