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Serratore v Noosa Shire Council[2021] QPEC 21

Serratore v Noosa Shire Council[2021] QPEC 21

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Serratore & Anor v Noosa Shire Council [2021] QPEC 21

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/S:

1781 of 2019

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal against enforcement notices

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

9 April 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21, 22, 23 and 24 September 2020 with further material delivered on 28 September 2020.

JUDGE:

Williamson QC DCJ

ORDER:

The appeal be listed for review on 16 April 2021.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – where each appellant given an enforcement notice under s 168 of the Planning Act 2016 in relation to vegetation clearing – appeal against decision to give the enforcement notices – whether there is a reasonable belief that a development offence has been committed under s 163 of the Planning Act 2016 – whether there are defects in the form of the enforcement notices given – whether the enforcement notices should be varied – whether the matter should be remitted to the respondent.

LEGISLATION:

Planning Act 2016, ss 29, 46, 88, 161, 163, 166, 167, 168, 260, 261, 264, 265, 275L and Chapter 7, Part 1 and Schedule 2

Planning Regulation 2017, ss 70, 71, 75 and Schedules 6, 22 and 23

Planning & Environment Court Act 2016, ss 43, 45 and 47

CASES:

Benfer v Sunshine Coast Regional Council [2019] QPELR 613

Briginshaw v Briginshaw (1938) 60 CLR 336

Crowther v State of Queensland [2003] QPELR 346

Phillips v Spencer [2006] 2 Qd R 47

Vines v Djordjevitch [1955] 91 CLR 512

COUNSEL:

K Wylie for the appellants

A Skoien for the respondent

SOLICITORS:

Mullins lawyers for the appellants

Heiner Doyle solicitors for the respondent

Introduction

  1. [1]
    This is an appeal against a decision to give an enforcement notice to each appellant under s 168 of the Planning Act 2016 (PA). The notices are in identical terms and allege the named recipient has committed, or is committing, a development offence on land formally described as Lot 1 on RP 205063 (the land). The underlying basis for each notice is a stated belief that vegetation had been, or was in the process of being, cleared on the land without an effective development permit, contrary to s 163 of the PA.
  2. [2]
    The appeal is a hearing anew.[1]
  3. [3]
    It is for Council to establish the appeal should be dismissed.[2]

Background

  1. [4]
    Giuseppe and Teresa Serratore, and their five adult children, jointly own the land.[3]
  2. [5]
    The land is 41 hectares in size. It is trapezoidal in shape, with a truncation in its south-western corner. The truncation adjoins the road reserve.
  3. [6]
    The land is improved with a dwelling, outbuildings and fences. Giuseppe and Teresa reside in the dwelling with one of their sons, Frank. Since the land was purchased by Giuseppe and Teresa in 1989, fruit trees, produce and pine trees have been planted. A small number of livestock (cattle and goats) graze the land.
  1. [7]
    Aerial photography reveals that, as at 14 May 2018, the land, and areas to the immediate north, east, south-east and west were heavily vegetated.[4] The risk of bush fire, and its associated impacts are a constraint to land use in these areas. The constraint is recognised in mapping in Council’s planning scheme and the State Planning Policy.[5] The mapping in each case depicts the land forming part of an extensive tract of vegetated land extending from the north-east, through the land and continuing to the west. Adjoining areas to the north, east, south-east and west of the land also form part of this same tract of vegetation.
  2. [8]
    Mr Hill, who is a bush fire expert, assessed the hazard risk for the land. He said the risk was high. This assessment considered, inter alia: (1) available fuel loads; (2) the anticipated direction of a bush fire having regard to prevailing winds; (3) the availability of firefighting infrastructure; and (4) first response capacity. With respect to item (2), Mr Hill pointed out that the subject land aligns with the direction of the ‘worst case’ fire weather for the region, which is hot dry weather accompanied by westerly to northerly winds.[6] I accept Mr Hill’s evidence in this regard.
  3. [9]
    After 14 May 2018,[7] an extensive area of vegetation was cleared on the land to create a series of bush fire access tracks and firebreaks/fire lines (the clearing works). The predominant species cleared was regrowth paperbark (Melaleuca quinquenvia).[8] The extent of the clearing works is depicted in the aerial photograph attached to these reasons and marked “A”.[9] The cleared areas are marked C1 to C12 for identification purposes. I have adopted the same numbering in these reasons.
  4. [10]
    Carmela Serratore is one of the appellants, and a registered owner of the land. In her affidavit sworn for these proceedings, Carmela identified the motivation for the clearing works as follows:[10]

…the prime motivation for undertaking clearing on the Property the subject of the Enforcement Notice (EN) given to me by the Council was to make the Property safe by reducing the risk from fire. We undertook the clearing to make the Property safer by reducing the fuel loads on the Property. We also wanted to reduce our liability to our neighbours in the event of unplanned wildfire and make it safe for emergency and fire crews when conducting a controlled burn on the Property.

  1. [11]
    The evidence in this appeal includes an explanation for clearing each area marked C1 to C12. It can be accepted, in general terms, the evidence establishes that the areas were cleared to achieve one or more of the following four purposes:[11] (1) to permit access for vehicles, including emergency vehicles, to various parts of the land; (2) to create fire lines or fire breaks to manage bushfire risk; (3) to facilitate access for livestock to animal shelters and dams; and (4) more broadly, to create a ‘mosaic’ of cleared land management zones to permit controlled burning.
  2. [12]
    With respect to item (4) above, Mr Hill explained the practice of creating a mosaic of cleared land in this way:[12]

What had been created is a mosaic of land management zones. The principles of mosaic burning have long been recognized as a means of most sensitively introducing planned and managed fire into the landscape. In many ways mosaic burning is similar to traditional aboriginal methods of burning (firestick farming) where small patches are burnt at a time when fire intensity is low and can readily be contained. In the same way as firestick farming, mosaic burning allows fauna and invertebrates to escape from a smaller burn area much more easily than where large areas are burnt. Following the burn it is also easier and quicker for recolonization to occur by both flora and fauna…

A mosaic of land management units now exists that enable managed fire on the Subject Lot, which would not have been possible otherwise…

  1. [13]
    Prior to the clearing works being carried out, Giuseppe, Antonio and Carmela Serratore sought advice from the local Rural Fire Brigade. A representative of the Rural Fire Brigade attended, and inspected, the land on 19 January 2018.[13] It was recommended by the representative that, inter alia, firebreaks be established on the land without delay.[14]
  2. [14]
    With the benefit of advice from a representative of the local Rural Fire Brigade, and with knowledge of the planning scheme’s hazard mapping for the land, it was decided by Giuseppe, Antonio and Carmela that clearing works should be undertaken to control the risk of bush fire. Carmela said these works commenced on the land in early 2018,[15] with the extent of clearing guided by areas marked out by Giuseppe as follows:[16]
    1. (a)
      a distance of 20 metres from the fence line located on the western and eastern boundaries;
    2. (b)
      a distance of 30 metres from an existing northern fence line;[17]
    3. (c)
      three fire management lines 10 metres wide, spaced at 100 metre centres;
    4. (d)
      a distance of 10 metres each side of existing driveway access tracks;
    5. (e)
      a distance of 10 metres around existing dams; and
    6. (f)
      a distance of 10 metres around existing sheds.
  1. [15]
    The enforcement notices the subject of the appeal are dated 19 April 2019. They were, as I have already observed, given under s 168 of the PA. A show cause notice was not given[18] prior to the enforcement notice. That this may occur is contemplated by s 167(5) of the PA. Subsection (b) of this provision provides that a show cause notice need not be given where the enforcement authority ‘reasonably believes it is not appropriate in the circumstances to give the show cause notice’. Here, it is uncontroversial that Council is an enforcement authority as defined in the PA.[19] The belief required by s 167(5)(b) was recorded in each enforcement notice in the following terms:[20]

Council is issuing an Enforcement Notice to you under the provisions of Section 168 of the Planning Act 2016. A Show Cause Notice has not been issued as Council reasonably believes the giving of a Show Cause Notice would be inappropriate in the circumstances due to the serious nature of the breaches identified below.

  1. [16]
    Section 3 of each enforcement notice identifies the reasons for giving the notice. The reasons are in the following terms:

Council reasonable [sic] believes that an Enforcement Notice should be given to you because you have committed or are committing an offence pursuant to Section 168 of the Planning Act 2016 and in breach of the Noosa Plan.

Satellite imagery…[over the land]… shows that extensive clearing of vegetation has taken place. Under the Noosa Plan, this clearing constitutes assessable development and is unlawful unless a Development Permit for Operational Works (clearing vegetation) has been obtained.

Under the Noosa Plan, the areas which have been cleared of vegetation are identified by the Noosa Plan’s Biodiversity Overlay as being a Riparian Buffer Area, Environmental Protection Area and/or Environmental Enhancement Area. Clearing vegetation within the Riparian Buffer Area, Environmental Protection Area and/or the Environmental Enhancement Area requires a Development Permit for Operational Works.

Council’s records show that a Development Permit has not been obtained for clearing vegetation. It is an offence under Section 163 of the Planning Act 2016 to carry out assessable development unless there is an effective Development Permit for such development.

Therefore, the vegetation clearing has been undertaken in breach of the Noosa Plan and the Planning Act 2016.

  1. [17]
    Two observations can be made about the ‘reasons’.
  1. [18]
    First, they state ‘Council’ held a reasonable belief that the named recipient ‘committed or [is] committing an offence’. None of the enforcement notices were given on the basis an appellant was ‘the owner of the premises’, rather than the person who committed the offence, as is envisaged by s 168(1)(b) of the PA.
  2. [19]
    Second, the development offence alleged to have been committed, or being committed, in each notice is a contravention of s 163 of the PA. Four facts were identified in the reasons to establish a belief this offence had been, or was being, committed namely: (1) unidentified satellite imagery for the land shows that extensive clearing of vegetation had taken place; (2) under the planning scheme, ‘this clearing’ constitutes assessable development and requires a development permit for operational works (clearing vegetation); (3) the areas cleared are identified by Noosa Plan’s Biodiversity Overlay as being, inter alia, Environmental Protection and/or Environmental Enhancement Area where clearing vegetation requires a development permit for operational works; and (4) Council’s records show that no development permit for operational works (vegetation clearing) had been obtained for the land.
  3. [20]
    Items (1) and (4) above are uncontroversial. The dispute between the parties focuses, in part, upon items (2) and (3).
  4. [21]
    Section 4 of each enforcement notice states the ‘actions’ required to comply with the notice. The time for completing the actions is stated in section 5 of each notice.  The stated actions are in the following terms:

“1. Immediately cease clearing vegetation on the property….;

2. Suitably stabilise the site to prevent movement of soils from the disturbed areas;

3. Lodge an application for a Development Permit for Operational Works to reinstate removed vegetation;

4. Undertake rehabilitation of the area cleared of vegetation.

  1. [22]
    Whilst the enforcement notices are stayed pending this appeal, the appellants have nonetheless complied with action 1. Council no longer presses action 2. This is unsurprising as the reasons for giving the enforcement notice do not establish a foundation for a requirement to stabilise soil. Action 3 has not been complied with by the appellants. Action 4 has been complied with, to a limited extent. Cleared areas are re-generating without human interference.
  1. [23]
    The evidence establishes that cleared areas have significantly regenerated.[21] This was confirmed by observation on the site inspection with counsel. It was also confirmed by Mr Stanton, who is a landscape ecologist engaged by the appellants. During his site inspections, Mr Stanton observed regrowth vegetation establishing in cleared areas, which was ‘robust’. He said the regrowth is ‘rapidly developing structural features of the ecosystem that was disturbed’.[22] No exotic species were recorded by Mr Stanton in areas subject to clearing, or within adjacent advanced regrowth and woodland habitats.[23] Mr Stanton recommended that any rehabilitation of the land (in terms of re-vegetation) should be allowed to occur naturally. This evidence was very persuasive, and I accept it.

The disputed issues to be determined

  1. [24]
    The appellants seek an order that their appeal be allowed, and the enforcement notices set aside. Multiple grounds are advanced in support. The grounds can be reduced to four propositions, namely:
  1. The enforcement notices given to Teresa, Michela, Priscilla and Frank Serratore should be set aside as there is no evidence to establish they are responsible for, or had control over, the vegetation clearing;
  2. The enforcement notices do not comply with ss 168(3)(a) and (c) of the PA and, as a consequence, are defective and should be set aside;
  3. The impugned vegetation clearing does not constitute assessable development and, as a consequence, a development offence has not been committed to engage s 168(1) of the PA; and
  4. There are discretionary considerations that militate against a decision to give varied enforcement notices to correct identified defects.
  1. [25]
    I will deal with each ground in turn.

The enforcement notices given to Teresa, Michela, Priscilla and Frank Serratore

  1. [26]
    Section 168(1) of the PA provides that an enforcement authority may give an enforcement notice to: (1) the person reasonably believed to have committed, or be committing, a development offence; or (2) the owner of the premises where a development offence is believed to have been, or being, committed. As I observed in paragraph [18], the enforcement notices given state that item (1) applies to each recipient, that is, they are all believed to have committed, or be committing, a development offence.
  2. [27]
    The evidence does not establish, to the requisite standard,[24] that Teresa, Michela, Priscilla and Frank Serratore committed[25] the development offence alleged in the enforcement notices. This was properly, and correctly, conceded by Mr Skoien.
  3. [28]
    The absence of evidence as against these four recipients of an enforcement notice means the first ground of challenge identified in paragraph [24] succeeds. The appeal will therefore be allowed, and the enforcement notices issued to Teresa, Michela, Priscilla and Frank Serratore set aside on this basis.

Are the remaining enforcement notices defective?

  1. [29]
    Mr Wylie submitted there are two defects which, individually, or collectively, warrant setting aside the remaining enforcement notices. First, it is contended the enforcement notices do not sufficiently describe the nature of the alleged development offence believed to have been committed. Second, it is contended the enforcement notices provide insufficient details of the act/s required to comply with the notice. It was emphasised in relation to the second defect that the requirement to provide sufficient details is an important one given it is an offence under s 168(5) of the PA to not comply with an enforcement notice.
  2. [30]
    Dealing with the first alleged defect, s 168(3)(a) of the PA mandates that an enforcement notice must state ‘the nature of the alleged offence’. As to the level of particularity to which a notice must descend, her Honour Judge Kefford comprehensively discussed this at paragraphs [90] to [95] of Benfer v Sunshine Coast Regional Council [2019] QPELR 613.
  3. [31]
    I agree with her Honour’s reasoning. It is authority for the proposition that the development offence believed to be committed should be identified with precision in an enforcement notice. This, as her Honour says, requires the factual ingredients (elements) that constitute the offence to be identified. Here, the enforcement notices do not, in my view, identify with the required precision the nature of the alleged offence. Nor do they identify all of the essential factual ingredients necessary to establish the alleged offence. This is so for the following reasons.
  4. [32]
    The development offence alleged in each enforcement notice is a contravention of s 163 of the PA. At the time the clearing works were undertaken (early 2018), s 163 provided, in part:[26]

163 Carrying out assessable development without permit

  1. (1)
    A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

  1. (2)
    However, subsection (1) does not apply to development carried out –

(a) under section 29(10)(a); or

(b) in accordance with an exemption certificate under section 46; or

(c) under section 88(3).

  1. [33]
    The reasons given in the enforcement notices describe the offence committed against s 163 of the PA in this way:

It is an offence under Section 163 of the Planning Act 2016 to carry out assessable development unless there is an effective Development Permit for such clearing.

  1. [34]
    With this description in mind, it is tolerably clear the author of the enforcement notices proceeded on the footing that s 163(1) of the PA is a complete statement of the factual situation which must exist before criminal liability is incurred. This is confirmed by the facts relied upon in each notice to establish the offence in the terms stated. To proceed on this footing, in my view, caused the drafter of each notice to fall into error.
  2. [35]
    Section 163 of the PA comprises two subsections. Given its form, an issue arises as to whether subsection (2) is, like subsection (1), an element of the offence created, or, an exception that must be negatived when raised as an excuse or justification (i.e. a defence). Whether subsection (2) is an element of the offence, or a defence, is to be determined by reference to the PA, and the intention ascribed to the legislature.[27]
  3. [36]
    Is subsection (2) an element of the offence created by s 163 of the PA?
  4. [37]
    This question is answered in the affirmative.
  5. [38]
    The offence created by s 163 is not stated completely in subsection (1). Both subsection (1) and (2), taken in combination, provide the complete statement of the factual situation which must be found to exist before criminal liability is incurred under s 163. This conclusion is supported by a combination of considerations.
  6. [39]
    First, there is statutory context suggesting grounds of excuse or justification (i.e. defences) are identified in the PA as ‘exemptions’.[28] In this regard, s 161 of the PA states:

What part is about

This part creates offences (each a development offence), subject to any exemptions under this part or to chapter 7, part 1 or section 275L.             

  1. [40]
    Development offences are created in Chapter 5, part 1 of the PA. Section 163(2) is contained within this part, but is not described as an exemption. Only one provision in this part of the PA is expressly described as an exemption, namely s 166. The heading to the provision is ‘Exemptions if emergency causing safety concern’. Section 163(2) is not recognised as, or deemed, an exemption in s 166.
  1. [41]
    Section 161 provides that exemptions are also to be found in s 275L[29], and Chapter 7 part 1.[30] The latter includes ss 260 and 261. Again, the exemptions provided by these sections are separate to the provisions creating development offences. For completeness, it can be observed that s 163(2) is not recognised as, or deemed, an exemption in these particular provisions of the PA.
  2. [42]
    Given the above, for s 163(2) to operate as an exemption, this would need to be implied from, inter alia, the words ‘However, subsection (1) does not apply to development carried out’. Whilst I accept this can be implied from these words, it is not the only implication open. It can also be implied that the provision is intended to operate as an element of the offence created. In my view, it is the second implication that is the preferred construction given two points of context, namely: (1) s 161 confirms the Act is structured with offences, which are subject to exemptions; and (2) the provisions creating the development offences appear to be separate to provisions providing exemptions. The second point is made good by comparing ss 162 to 165 with ss 166(2), (3) and (4) and ss 260, 261 and 275L.
  3. [43]
    That the matters identified in s 163(2) are not contained within a separate provision providing an exemption, such as ss 166, 260, 261 and 275L, is in my view, a strong indicator it is not intended to operate as an excuse or justification for s 163(1).
  4. [44]
    Second, when the circumstances contemplated by s 163(2) are considered, it is clear they are directed at cases where the development carried out has occurred lawfully, rather than identifying circumstances excusing the carrying out of development that would otherwise be unlawful.
  5. [45]
    This can be demonstrated by comparing s 163(2) with s 166(4). 
  6. [46]
    The latter is expressed as an excusatory provision. It states:

A person who, in an emergency, is carrying out any other necessary activity does not commit a development offence if the person gives notice that the person has been carrying out the activity, as soon as practicable after starting the activity, to –

(a) the enforcement authority; and

(b) a person who must be given notice of the activity under another Act.

  1. [47]
    The above provision excuses the commission of a development offence where it is a necessary activity (assessable development), which has been carried out in an emergency and a prescribed notice has been given. But for that emergency, and the giving of the prescribed notice in a specified time, the development carried out would, prima facie, be unlawful. This, in my view, is a clear example of a provision of the PA that is intended to operate as an excuse or justification. The circumstances in which the excuse or justification arises will be known to the person who seeks to raise it. Not all of those circumstances will be within the enforcement authority’s actual, or assumed, knowledge.
  2. [48]
    Section 163(2) does not work in the same way. It is drafted to make clear that s 163(1) ‘does not apply’ in one of three circumstances. In each of the circumstances, they have an important feature in common, which does not exist in the case of s 166(4). The three stated circumstances contemplate the development the subject of consideration is, or has been, lawfully authorised at the time it was carried out. When appreciated in this light, it can be seen that the purpose of s 163(2) is to make clear that criminal liability cannot arise at all if one, or more, of the three prescribed circumstances exist.
  3. [49]
    Third, the three circumstances cited in s 163(2) should be within the actual or assumed knowledge of an enforcement authority. That these matters are within its knowledge provides relevant context for determining whether s 163(2) is an element of the offence, or an excuse or justification.
  4. [50]
    In each of the three cases prescribed in s 163(2), the PA recognises there is an authority to carry out the development the subject of consideration, which can be sourced to a specific provision in the Act. That authority may not necessarily be founded upon a development permit. In the case of subsection (2)(a), the authority is sourced back to a superseded planning scheme request. In the case of subsection (2)(b), the authority is sourced to an exemption certificate.[31] In the case of subsection (2)(c), the authority is sourced to a lapsed development approval that contains a condition, or is subject to an agreement, requiring particular works to be completed.
  5. [51]
    The matters raised by s 163(2) do not call for new or additional facts solely within the knowledge of the appellants to be examined. Rather, proof in relation to all three limbs is within a Council’s control. The provisions all relate to decisions that could be made, or deemed to be made, by it. This can be demonstrated by reference to the provisions of the PA referred to in s 163(2).
  6. [52]
    Section 29(10)(a) of the PA states:

(10) If the local government decides to agree, or is taken to have agreed, to a request[32] under subsection (4)(b) –

(a) the development may be carried out under the superseded planning scheme; and” (emphasis added)

  1. [53]
    Council can prove whether it received a request of the kind referred to in s 29(4)(b). It can also prove whether it agreed to the request, or by operation of statute, is deemed to have agreed to the request.[33]
  1. [54]
    Section 46 of the PA creates an ‘exemption certificate’ for some assessable development. Subsection (1) provides that a development approval is not required for assessable development on premises if there is an exemption certificate for the development. Subsection (2) provides that an exemption certificate can be given by a local government where it would be the prescribed assessment manager in the event a development application was made. An exemption certificate may be given where subsection (3) is complied with. Where the decision maker under subsection (3) is not a local government, subsection (4)(c) requires a copy of the exemption certificate to be given to it in any event. Subsection (5) requires the decision maker to publish a notice about any exemption certificate granted on its website.
  2. [55]
    Council can prove from its records whether an exemption certificate has been sought, or granted in relation to the land.[34] The latter is so even assuming no application was made to Council for such a certificate. As I have said, s 46(4)(c) requires a copy of any exemption certificate to be given to the Council in the event it is not the decision maker. The certificate, if necessary, could even be obtained from a relevant decision maker’s website, assuming one exists.
  3. [56]
    Section 88 of the PA is relevant to a circumstance where development has started but is not completed prior to an approval lapsing. Subsection (3) of the provision states:

However, despite the lapsing of the development approval, any security paid under a condition stated in section 65(2)(e) may be used as stated in the approval or agreement under section 67 (to finish the development, for example).

  1. [57]
    The above provision has in mind that a planning authority, such as Council, may call on security paid under a lapsed approval to carry out development required by a condition of a lapsed approval, or related agreement under s 67 of the PA. The development carried out in such circumstances will not contravene s 163 of the PA.
  2. [58]
    Council will be able to prove from its records[35] whether a development approval has been issued, lapsed and a decision made to carry out development in the manner anticipated by s 88(3) of the PA.[36]
  3. [59]
    The significance of the matters discussed in paragraphs [36] to [58] can be appreciated when contrasted with Chapter 7, Part 1 of the PA, which is identified as an exemption in s 161. Within this part of the Act, certain existing lawful uses, works and approvals are protected (s 260), as are implied and uncommenced rights to use land (s 261). An examination of these exemptions reveals, unlike s 163(2), there are a number of facts or circumstances that must be known to engage the exemptions, including facts beyond an enforcement authority’s actual, or assumed, knowledge.
  4. [60]
    Taking s 260 as a starting point, the rights protected include historical use rights that were exercised without the need for a development permit. For example, a landowner or occupier may have commenced a use that was exempt or self-assessable development under the Sustainable Planning Act 2009. There was no requirement, of which I am aware, requiring a record to be kept by Council as to when such a right was exercised, let alone a record of the scale and intensity of the use started in reliance upon that right. This is relevant for s 261 of the PA. Three pre-conditions must be satisfied to engage the provision. One precondition is contained in subsection (1)(c), which requires a view to be formed as to when a use started. When the use started, and whether its scale and intensity have remained constant is unlikely to be within an enforcement authority’s actual, or assumed, knowledge.
  5. [61]
    That the facts and circumstances prescribed by s 163(2) of the PA should be within the Council’s actual, or assumed, knowledge is relevant context for determining whether the provision is an element of the offence. It points in favour of a conclusion that the provision is an element of the offence. As context, it also engages a presumption, which can be stated as - the burden of proof is placed on a party to prove matters particularly within that party’s knowledge.[37] I accept the presumption has been criticised and may not be determinative in any given case. Nonetheless, in conjunction with all of the matters considered in paragraph [36] to [58] it is relevant context which persuades me s 163(2) is an element of the offence created rather than an excuse or justification.
  6. [62]
    Against the background of the above discussion, it is my view, that for a reasonable belief to be formed about an offence against s 163 of the PA, an enforcement authority (or this court on appeal) is required to ask, and answer, the following questions:
    1. (a)
      Has a person carried out ‘development’?
    2. (b)
      Is the ‘development’ carried out ‘assessable development’?
    3. (c)
      Is the ‘assessable development’ carried out authorised by all necessary development permits?
    4. (d)
      If the assessable development is authorised by a development permit/s, had the permit/s taken effect at the time the development was carried out?
    5. (e)
      Was the assessable development carried out under an exemption certificate under s 46 of the PA?
    6. (f)
      Was the assessable development carried out under s 29(10)(a)?
    7. (g)
      Was the assessable development carried out under s 88(3) of the PA?
  7. [63]
    The enforcement notices do not answer the questions posed in subparagraphs (e) to (g) above. The failure to do so is a defect in each enforcement notice. It means, in my view, the enforcement notices do not allege a development offence known to law, which is contrary to s 168(3)(a) of the PA.
  8. [64]
    If a different view is taken, namely that s 163(1) of the PA is to be treated as a complete statement of what must exist before criminal liability is incurred, my view as to the sufficiency of the enforcement notices for the purpose of s 168(3)(a) of the PA remains unchanged. The reasons stated in the enforcement notices are not sufficiently precise to identify the alleged offence. The notices do not identify: (1) when the offence occurred; (2) the facts relied upon to allege the offence was still being committed; and (3) why the clearing work constituted operational work as defined in the PA. The enforcement notices are silent about item (3), which is an essential factual ingredient required to establish the clearing works constituted assessable development.
  9. [65]
    It is unnecessary to dwell upon the above. Contrary to the reasons given in the enforcement notices, Council now accepts that some of the clearing works is accepted development and therefore lawful. This has the consequence that the nature of the offence alleged in each enforcement notice cannot be sustained. The description of the offence does not accurately reflect the offence now alleged to have been committed.
  10. [66]
    Given paragraph [65] alone, the enforcement notices can be set aside on the basis they do not satisfy s 168(3)(a) of the PA.
  11. [67]
    The second alleged defect relates to section 4 of each enforcement notice, which sets out the acts each recipient was required to carry out. Having regard to the matters discussed in paragraphs [22] and [23], I agree with the submissions made by Mr Wylie about section 4 of the enforcement notices. Put simply, the notices do not state the ‘details of the act’ to be carried out as required by s 168(3)(c)(i) of the PA.
  12. [68]
    The stated actions, particularly those in items 2 and 4 are expressed in general terms and do not identify any objective standard by which compliance can be measured. For example, action 4 requires the rehabilitation of cleared areas. It may be asked rhetorically: (1) what parts of the land are to be rehabilitated? (2) by reference to what objective standard is the land to be rehabilitated? (3) over what period should the rehabilitation take place? (4) does Council need to be satisfied about the rehabilitation proposed and carried out?
  13. [69]
    In circumstances where it is an offence to not comply with an enforcement notice, the level of particularity given in the notices issued here is unsatisfactory.[38] The detail falls well short of that required to comply with s 168(3)(c)(i) of the PA. This is a defect in each notice.
  14. [70]
    Paragraphs [67] to [69] establish that the second ground of challenge in paragraph [24] should succeed. The appeal can be allowed on this basis, and the enforcement notices set aside.
  15. [71]
    In fairness to Council, it should be observed that it accepts sections 4 and 5 of the enforcement notices need to be amended.[39] The amendments it seeks are articulated in exhibit 6. When read with the evidence of Mr Stanton, I was comfortably satisfied the stated actions in exhibit 6 are appropriate, assuming a development offence has been committed.

Has a development offence been committed?

  1. [72]
    Section 168(1) of the PA provides that an enforcement authority may give an enforcement notice if it ‘reasonably believes a person has committed, or is committing, a development offence’.  An important issue in this appeal is whether such a belief can be held having regard to all of the evidence.
  2. [73]
    As I have already said, it is Council’s case that a development offence has been committed under s 163.[40] For there to be a reasonable belief that such an offence has been committed, an enforcement authority (or this court on appeal) is, in my view, required to ask, and answer, the questions posed in paragraph [62]. That is so, even assuming s 163(2) operates as a defence, rather than an essential ingredient or element of the offence alleged. I am of this view because it would be unreasonable for an enforcement authority to form the relevant belief under s 168(1) without taking into account the presence, or absence, of the matters raised for consideration in s 163(2) of the PA. As I have said, they are matters within, or fairly assumed to be within, an enforcement authority’s knowledge.
  3. [74]
    In my view, a reasonable belief that a contravention of s 163 of the PA has occurred will arise where the evidence establishes that: (1) paragraphs [62](a) and (b) are answered in the affirmative; and (2) paragraphs [62](c) to (g) are answered in the negative.  The standard of proof to be applied in determining these questions is the civil standard, namely the balance of probabilities,[41] but always mindful of the Briginshaw standard.[42] This is required given the serious nature of the findings the court is asked to make, namely that a development offence has been committed.
  4. [75]
    I will now turn to consider each of the questions posed in paragraph [62].
  5. [76]
    With respect to subparagraph (a), it is uncontroversial the clearing works were carried out in early 2018.[43] The evidence suggests the works were carried out by a contractor, with varying degrees of direction and involvement from Giuseppe,[44] Antonio[45] and Carmela Serratore.[46] There is no evidence to establish that any of the other named appellants carried out, or had involvement with (either individually, or through their agent or contractor) the clearing works. This was conceded by Mr Skoien.[47]
  6. [77]
    To answer the question posed in paragraph [62](a) in the affirmative, it is necessary to establish the clearing works is ‘development’ for the purposes of the PA. This term is defined in Schedule 2 of the PA, and includes ‘carrying out…operational work’.
  1. [78]
    The term operational work is also defined in Schedule 2 of the PA as follows:

operational work means work, other than building work or plumbing or drainage work, in, on, over or under premises that materially affects premises or the use of premises.

  1. [79]
    It can be accepted that the clearing work is not building, plumbing or drainage work. The point requiring closer attention in this case arises from the tail end of the definition. The question to be considered is whether the clearing work ‘materially affects the premises or the use of premises’? This is a question of fact and degree. The answer will be informed by a range of considerations, including the adopted planning controls. Importantly, it should be borne in mind that it is insufficient for the clearing works to affect the premises or its use. The degree of affectation must be material to satisfy the definition.
  2. [80]
    Here, I am satisfied the clearing work materially affects the premises for the purposes of the definition of operational works. This is so when two matters are taken in combination, namely: (1) the extent of clearing, which is depicted in aerial photography and described in the affidavits of Mr Friend and Mr Hill; and (2) the underlying rationale for the clearing works, as described by Carmela Serratore, which was to manage a known and significant constraint to the use of the land, namely bush fire hazard. The level of risk attending that hazard is high.
  3. [81]
    The clearing work is development for the purposes of the PA, namely operational works. I am, as a consequence, satisfied the question posed in paragraph [62](a) is answered in the affirmative.
  4. [82]
    With respect to paragraph [62](b), it is necessary to determine whether the clearing works is categorised as assessable development. This is resolved in this case by reference to Council’s planning scheme, ‘The Noosa Plan’.
  5. [83]
    For the purposes of the planning scheme, the land is included in the Cooroibah locality[48] and Rural zone[49]. Section 5.14 (division 8), table 5.6[50] of the planning scheme contains the assessment table for development that is ‘other than material change of use’ in the Cooroibah locality. The table does not make operational work (involving vegetation clearing) in the locality, or Rural zone, assessable development. That this is so is not the start and finish of an examination of the planning scheme.
  6. [84]
    Part 13 of the planning scheme is also of relevance. It contains overlays. Of particular relevance is the Biodiversity overlay and the associated code (the overlay). Overlay mapping indicates the land is affected by the overlay in at least two respects. The land is mapped as partly ‘Environmental Protection’ and partly ‘Environmental Enhancement’.[51]
  1. [85]
    Division 2 of the overlay sets out a number of definitions. One such definition is ‘category 3 lot’,[52] which means a freehold lot of 2 hectares or more, other than a category 4 lot, in the protected vegetation overlay area. There was no dispute between the parties that the land satisfied this definition.
  2. [86]
    An assessment table for the overlay is Table 13.1 of section 13.4 of the planning scheme which categorises the following type of development as accepted, or code assessable, development:

 

Column 1

Column 2

Column 3

Type of Development

Categories of  development and assessment

Assessment benchmarks for assessable development and requirements for accepted development

Carrying out operational work; or…

 

 

Accepted development if–

c) exempt clearing; or

Code assessment if involving –

a) clearing vegetation on premises identified as Environment Protection Area, Environmental Enhancement Area…; or

d) clearing of protected vegetation.

If accepted development – no assessment benchmarks apply.

If code assessment – Biodiversity Overlay Code

 

  1. [87]
    Table 13.1 provides that the carrying out of operational works on land the subject of the overlay may require a development permit. That there is a difference between the zone, and overlay, as to the category of development applying to the clearing works is resolved by s 2.6.3 f) of the planning scheme. It provides that any difference in the categorisation is resolved in favour of the highest level of assessment. In this case, the highest level of assessment is prescribed by the overlay, namely code assessment. Development that is code assessable, prima facie,[53] requires a development permit to be obtained before it can be carried out.
  2. [88]
    Was a development permit required for the clearing works?
  1. [89]
    This question is to be considered against the background that the appellants’ case was conducted on the premise they accept, but for subparagraph c) in the extract of table 13.1 above, the clearing works triggered code assessment and required a development permit. Bound up in this is an acceptance that the work involved clearing protected vegetation, as defined for the overlay, on premises identified as ‘Environment Protection Area’ and ‘Environmental Enhancement Area’. Having regard to the planning scheme mapping and definitions, and known facts, the appellants’ position in this regard was a fair one to adopt.
  2. [90]
    Ultimately, the answer to the question posed in paragraph [88] turns on whether the clearing works constituted ‘exempt clearing’. This is itself a defined term. It is a lengthy definition. The following parts of the definition have direct application to this appeal:

exempt clearing means –

a) clearing which is a property maintenance activity;

b) clearing which is reasonably necessary for emergency access or work or is immediately required in response to an accident or emergency;

h) clearing on a category 3…lot greater than ten (10) hectares in area, where –

i. the vegetation is within 30 metres of a building or within ten (10) metres of a structure; and

ii. the clearing is reasonably necessary for the control of fire risk to the building or structure; and…”

  1. [91]
    Terms within the exempt clearing definition are themselves defined, namely ‘property maintenance activity’ and ‘reasonably necessary’. These definitions are as follows:

property maintenance activity means clearing protected vegetation which is reasonably necessary for property maintenance including the following-

a) construction and maintenance of a farm track, fence and shed on site

b) maintenance of crops

c) slashing of grass

d) harvesting of crops

e) maintenance of pasture and cleared land areas

f) pruning, felling and clearing of orchard vegetation species

g) surveying purposes

h) collection of firewood for non-commercial purposes

i) removal of exotic weed

j) removal of undesirable plant species

k) any other maintenance activity specified in a property vegetation management plan.”

And:

reasonably necessary means vegetation clearing for a particular purpose where there is no alternative way of achieving the purpose that is prudent and feasible and that would avoid clearing or significantly reduce the extent of vegetation clearing.”

  1. [92]
    Turning to attachment A to these reasons, it can be seen that the areas marked C8 (west), C9 (east) and C10 (south-east) are parallel to the boundaries of the land. C7 is parallel to an existing fence line in the northern part of the land. Mr Hill, the appellants’ bush fire expert, measured the ‘average width’ of clearing in each of these areas. He did so using a 50 metre survey tape. The results were cross-checked against aerial imagery from ‘Nearmap’.[54] 
  2. [93]
    The average width of clearing in areas C7 to C10 were determined by Mr Hill to be as follows:[55] (1) C7 – 30 metres, where a cleared width of 15 metres had existed prior to the clearing works; (2) C8 – 21 metres, where a cleared width of 10 metres already existed prior to the clearing works; (3) C9 – 30 metres; and (4) C10 – 26 metres.
  3. [94]
    The average width of clearing determined by Mr Hill for:
    1. (a)
      C7 is consistent with the area marked out by Giuseppe Serratore prior to the clearing works occurring;
    2. (b)
      C8 is 1 metre wider than the area marked out by Giuseppe Serratore prior to the clearing works occurring;
    3. (c)
      C9 and C10 appear to be up to 10 metres wider than the area marked out by Giuseppe Serratore prior to the clearing works occurring.
  4. [95]
    It was submitted by Mr Wylie that the clearing works undertaken at C7, C8, C9 and C10 were exempt clearing under the planning scheme on three bases. First, because the clearing constitutes a ‘property maintenance activity’ for the establishment of a fire break and set back from existing boundary fencing. Second, it was said the clearing works had the effect of constructing an emergency access track, as contemplated by subsection b) of the definition of ‘exempt clearing’. Third, it was said the clearing works created clearance either side of an existing fence[56] to control fire risk, as contemplated by subsection h) of the definition of ‘exempt clearing’. The submissions made by Mr Wylie in this regard are supported by the evidence of Carmela Serratore.[57]
  1. [96]
    The clearing works in C1, C5 and C6, taken in combination, line the edge of an existing access track and extend that track from the south-east to the north-west corner of the land. The track also functions as an internal firebreak/fire line. Within C1 there are existing fences, dams and children’s playground equipment. 
  2. [97]
    Mr Hill determined the average width of clearing in these locations to be as follows:[58] (1) C1 – 34 metres, where a width of 10 metres existed prior to the clearing works; (2) C5 – 32 metres, where a width of 12 metres existed prior to the clearing works; and (3) C6 – 24 metres.
  3. [98]
    The average width of clearing determined by Mr Hill for:
    1. (a)
      C1 is 4 metres wider than the area marked out by Giuseppe Serratore prior to the clearing works occurring (allowing 10 metres either side of an existing track); and
    2. (b)
      C5 is consistent with the area marked out by Giuseppe Serratore prior to the clearing works occurring (allowing 10 metres either side of an existing track).
  4. [99]
    A comparison between Mr Hill’s average width for C6 and the areas marked out by Giuseppe Serratore prior to the clearing works occurring is difficult. It is less than clear from the evidence what area, if any, was marked out in C6.
  5. [100]
    Mr Wylie submitted the clearing work undertaken in C1, C5 and C6 was exempt clearing for a number of reasons. He submitted the clearing works constituted a ‘property maintenance activity’ as defined because it either: (1) established a fire break; (2) resulted in a clearing around an existing farm track; (3) cleared vegetation to facilitate access to a water supply; (4) cleared vegetation to establish new fencing; and (5) cleared vegetation to construct an animal shelter. It was also submitted the clearing was exempt clearing having regard to subsections b) and h) of the definition. The definition was said to be satisfied because the clearing facilitated the construction of an emergency access track; clearance either side of a fence line; and clearance around an animal shelter.
  6. [101]
    The submissions made by Mr Wylie in relation to C1, C5 and C6 are supported by the evidence of Carmela Serratore.[59]
  7. [102]
    The area marked C11 is an existing dam. Vegetation has been cleared around the dam to permit access to it by vehicle, and for stock (to drink the water). The clearing work also provided clearance around structures located at the corners of C11/C5 and C11/C4. Mr Hill did not calculate an average width of clearing for C11.
  8. [103]
    Mr Friend, Council’s expert,[60] determined the width of clearing in C11 by reference to aerial photography. He concluded from this exercise that the width of clearing in C11 ranged from 13.4 to 30.5 metres wide.[61] The average width of clearing was calculated to be in the order of 22 metres. This average exceeds the distance said to have been marked out by Giuseppe Serratore by some 12 metres.
  9. [104]
    Mr Wylie submitted the clearing work carried out in C11 was exempt clearing because it was a property maintenance activity. He also submitted the clearing work engaged subsection h) of the definition of exempt clearing. Subsection h) anticipates, subject to qualifications, clearing in the order of 10 metres around a structure.
  10. [105]
    The submissions made by Mr Wylie in relation to the area identified as C11 are supported by the evidence of Carmela Serratore.[62]
  11. [106]
    The areas marked C2, C3 and C4 are internal fire management lines created by the clearing works. They are intended to facilitate the division of the land into zones (as discussed in paragraphs [11] and [12]) and are located at about 100 metre centres. A fence runs down the centre of each area. As I understand the evidence, the fence was constructed after the clearing works had been carried out.
  12. [107]
    Mr Hill determined the average width of clearing in these locations as follows:[63] (1) C2 – 15 metres; (2) C3 – 13 metres; and (3) C4 – 17 metres. Each of these widths exceed (by 5, 3 and 7 metres respectively) the distance marked out by Giuseppe Serratore prior to the clearing works occurring.
  13. [108]
    Mr Wylie submitted the clearing work in C2, C3 and C4 was exempt clearing because it was a property maintenance activity. More particularly, it was said the clearing works established a fire management line, permitted new fencing and animal shelters to be constructed. Mr Wylie, in addition, submitted the clearing was exempt clearing under subparagraphs b) and h) of the definition. The clearing work in C2, C3 and C4 was said to be undertaken to construct an emergency access, and provide clearance either side of a new fence line and animal shelter.
  14. [109]
    The submissions made by Mr Wylie in relation to C2, C3 and C4 are supported by the evidence of Carmela Serratore.[64]
  15. [110]
    C12 is an area to the immediate north of the existing dwelling, which is located in the south-western corner of the land. Mr Hill did not measure the average width of clearing in this location. Mr Friend, using aerial photography determined there was a distance of some 6 to 18 metres of clearing beyond an existing clearing line. The resulting cleared area exceeds a 30 metre width measured from the existing dwelling.[65] Carmela Serratore said the ‘limited clearing’ in C12 was undertaken to permit the establishment of a wild dog fence to keep vermin out that could attack chickens, ducks and goats kept near the existing dwelling.[66]
  16. [111]
    Mr Wylie submitted the clearing undertaken in C12 was exempt because it was a property maintenance activity for the establishment of a fire break, and to construct a new fence. He also relied upon subparagraph h) of the definition of exempt clearing on the footing the clearing provided a 30 metre separation distance around the existing dwelling, and a 10 metre clearing either side of a fence line. This proposition assumed the clearing was for bush fire risk management purposes.
  17. [112]
    Neither Council, nor its officers, had Mr Wylie’s submissions at the time the enforcement notices were given. Nor did they have the evidence of Carmela Serratore. Having had the opportunity to review the submissions and the evidence, Council fairly conceded, through Mr Skoien, that the position articulated in the enforcement notices as to the commission of a development offence had changed.
  18. [113]
    Mr Skoien submitted it was Council’s position that the clearing work within the pink areas identified on Attachment 1 to his submissions was exempt clearing and did not require a development permit.  This submission applies to C1, C4, C5, C6, C7, C8, C9, C10, C11 and C12. In all cases, save for C12, the width of clearing said to be exempt is 10 metres. In relation to C12, Council accepts that a distance of 30 metres, measured from the house and associated outbuildings, is exempt.[67]
  19. [114]
    Council contends the clearing work exceeding the exemptions stated above constitutes assessable development for which a development permit was required. In this context, Mr Skoien emphasised the ‘spatial extent’ of the clearing works. He said it was this factor that demonstrates the works, when considered as a whole, went well beyond ‘any possible clearing that meets any of the exceptions identified in the definition of exempt clearing’.
  20. [115]
    Is the clearing work exempt clearing as defined in the planning scheme?
  21. [116]
    To resolve this question three matters must, in my view, be considered: (1) what is the purpose of the clearing work in C1 to C12? (2) does the identified purpose engage one, or more, of the exemptions in the planning scheme? and (3) is the clearing work ‘reasonably necessary’ as defined in the context of the exemption engaged in any given case?
  22. [117]
    With respect to C1, C5, C6, C7, C8, C9 and C10, I accept that the purpose of the clearing works was two-fold. First, to make provision for emergency access. Second, for the control of bush fire risk. The provision of emergency access engages subparagraph b) of the definition of exempt clearing. The control of bush fire risk is, in my view, fairly regarded as a property maintenance activity as defined. Each of these exemptions are not unqualified. They are informed by the definition of ‘reasonably necessary’ in the planning scheme.
  23. [118]
    The definition of ‘reasonably necessary’, which is set out above, applies to vegetation clearing. It requires the clearing to be considered by reference to three matters:
    1. (a)
      What is the purpose of the clearing? and
    2. (b)
      Is there an alternative way to achieve the purpose, which is prudent and feasible, and would avoid clearing? or
    3. (c)
      Is there an alternative way to achieve the purpose, which is prudent and feasible, and significantly reduce the extent of vegetation clearing?
  1. [119]
    I have identified the underlying purpose/s of the clearing works in C1, C5, C6, C7, C8, C9 and C10 above, namely paragraphs [11] and [117]. Sensibly, the purpose of the works cannot be achieved by avoiding clearing altogether. The clearing works were, therefore, an alternative way of achieving the purposes identified. The real issue is whether, as an alternative to no clearing, the works significantly reduced the extent of clearing required to achieve the identified purpose/s.
  2. [120]
    The clearing work carried out in C7, C8, C9 and C10 creates an access track, and fire break, along the edges of the land. The average width of clearing in these areas ranges from 26 metres to 30 metres. Given the matters discussed in paragraphs [6] to [13], I accept that a width of 20 metres clearing in C7 and C8 is ‘reasonably necessary’ to provide emergency access and to provide for the control of fire risk. I also accept that an average clearing width of 30 metres and 26 metres was not ‘reasonably necessary’ for C9 and C10. That width of clearing exceeds the area marked out by Giuseppe Serratore prior to the works commencing. No credible explanation has been offered by the appellants as to why this occurred. This is troubling in circumstances where: (1) I infer the distances that were marked out by Giuseppe were based on advice received from the local Rural Fire Brigade; and (2) the maximum width of clearing in these areas exceeds, by a considerable margin, the area marked out by Giuseppe. Having regard to the evidence, and the underlying purpose of the clearing in C9 and C10, I accept that a clearing distance of 10 metres was ‘reasonably necessary’.
  3. [121]
    There is a point to be noted in relation to C10. It is uncontroversial that a relevant amendment was made to Schedule 6 of the Planning Regulation 2017 after the clearing works were carried out. The schedule identifies development that a local planning scheme is prohibited from making assessable development. Item 20A of the Schedule prohibits a planning scheme from making operational work for clearing native vegetation assessable in identified circumstances. One such circumstance is where the clearing is on freehold land and is necessary to establish, or maintain, a necessary firebreak or to establish a necessary fire management line. Council concedes the prohibition would apply to clearing works carried out today for part of C10.
  4. [122]
    The prohibition applies to vegetation clearing near a powerline and an existing shed, both of which are located on the adjoining property. The width of clearing that falls within the prohibition is 20.25 metres. Whilst this point is not an excuse or justification for any development offence committed on the land in May 2018, it is relevant to the extent of rehabilitation works, if any, that may be required to make good any development offence. In my view, if rehabilitation works are required on the land, those works should take into account the prohibition discussed above. This is particularly the case in C10. Any rehabilitation in this area should not intrude within the 20.25 metre distance conceded by Council in the attachment to its written submissions.
  1. [123]
    The clearing work carried out in C1, C5 and C6 creates an internal access road. Its average width varies from 24 to 34 metres wide. This purpose cannot be achieved without clearing, but the width is not ‘reasonably necessary’ given: (1) it exceeds, in part, the areas marked out by Giuseppe Serratore prior to the clearing work being undertaken (paragraph [14]), which, I infer, was informed by advice received from the local Rural Fire brigade; and (2) even allowing for the protection of fencing along the edge of the track, and to provide sufficient room to accommodate an emergency vehicle, these average widths are excessive.
  2. [124]
    The position is only exacerbated when consideration is given to the maximum width of clearing in these locations as distinct from the average. The maximum width of clearing measured by Mr Friend suggests C1, C5 and C6 where cleared to an extent greater than that marked out by Giuseppe Serratore. No credible explanation was offered by the appellants as to why this occurred.
  3. [125]
    With respect to C2, C3, and C4, the purpose of clearing these areas was to create a series of zones to manage bush fire (as discussed in paragraphs [10] to [13]). Fences have also been erected in these areas to maintain fire management zones. Clearing to create a fire management zone with a fence is, in my view, exempt clearing as defined because it is for the purpose of property maintenance. This purpose cannot be achieved without clearing. That said, I am however persuaded it was not ‘reasonably necessary’ to clear an average width of 13 to 17 metres to achieve this purpose. The evidence does not suggest any more than 10 metres of clearing was required to accommodate: (1) a track for access; and (2) a cleared area either side of a fence line that had been constructed within the track.
  4. [126]
    With respect to C11, I accept the clearing works in this area was intended to permit access to a dam and animal shelters. This purpose could not be achieved without clearing. The average width of vegetation cleared in this area was measured by Mr Friend to be in the order of 22 metres. This is, in my view, excessive, and not ‘reasonably necessary’ as defined. I would accept, consistent with the area marked out by Giuseppe Serratore, that a width of 10 metres clearing is ‘reasonably necessary’ in C11.
  5. [127]
    With respect to C12, I accept the purpose of the clearing works in this part of the land was to control the risk of fire for an existing dwelling and fencing. This purpose could not be achieved without clearing. It engages two exemptions, namely it is a property maintenance activity and subparagraph h) of the definition of exempt clearing.
  6. [128]
    The extent of clearing I regard as ‘reasonably necessary’ in this part of the land is consistent with the dimensions identified in subparagraph h) of the definition of exempt clearing. The evidence does not suggest any greater dimension is required to achieve the identified purpose for which the clearing was undertaken in C12.
  1. [129]
    In summary terms, I agree with Council, in part. I accept the following aspects of the clearing works were exempt clearing for the purposes of Noosa Plan:
    1. (a)
      C7 and C8 – up to a maximum width of 20 metres;
    2. (b)
      C1, C2, C3, C4, C5, C6, C9, C10 and C11 – up to a maximum width of 10 metres; and
    3. (c)
      C12 – up to a maximum of 30 metres measured from the existing dwelling, and 10 metres from any existing structure.
  2. [130]
    There is one qualification that should be noted in relation to paragraph [129].
  3. [131]
    The evidence of Mr Hill establishes that vegetation had been cleared on the land prior to the clearing works. This occurred in C1, C5, C7, C8, C11 and C12. Council does not contend, nor does the evidence establish, that these earlier clearing works were unlawful. Where an existing clearing line exceeds the dimensions stated in paragraph [129], it is this line that is to be taken as the extent of lawful clearing.
  4. [132]
    Given the above, I am satisfied the clearing works were assessable development in part only – i.e. subject to paragraph [131], to the extent the clearing work exceeds the widths stated in paragraph [129]. This has the consequence that the question posed in subparagraph [62](b) is answered in the affirmative. 
  5. [133]
    The questions posed in paragraphs [62](c) and (d) require an enforcement authority (or this court on appeal) to determine whether the assessable development was authorised by a development permit that had taken effect. The certificate of Council’s Chief Executive Officer satisfies me that both questions are answered in the negative.[68] The appellants did not contend otherwise.
  6. [134]
    The questions posed in paragraphs [62](e) to (g) relate to s 163(2) of the PA. They are all resolved in the negative. The appellants admit[69] the clearing works were not carried out under an exemption certificate or ss 29(10)(a) and 88(3) of the PA.
  7. [135]
    In light of paragraphs [62], [81] and [132] to [134], I am satisfied, to the requisite standard, there is a reasonable belief that a development offence has been committed under s 163 of the PA.
  8. [136]
    The third ground advanced in paragraph [24] has not been established.

Discretionary considerations

  1. [137]
    The appellants contend there are discretionary reasons ‘that would tend toward the court setting aside the enforcement notices’. The grounds relied upon are set out in paragraphs 81 to 86 of Mr Wylie’s written submissions. Given the notices will be set aside for reasons discussed above, it is unnecessary to deal with this aspect of the appellants’ case, which is the fourth point identified in paragraph [24].

What orders should be made disposing of the appeal?

  1. [138]
    For the reasons given above, the appeal will be allowed and the enforcement notices given to each appellant set aside.
  2. [139]
    In anticipation of this outcome, Council invited me to make orders varying the enforcement notices, or alternatively, remit the matter to allow new enforcement notices to be issued consistent with these reasons for judgment (and any further direction given by the court).
  3. [140]
    I am not persuaded either course is appropriate here given: (1) the extent to which the notices would need to be varied to reflect these reasons; and (2) a fair concession made by Mr Wylie. He conceded there is no impediment to Council issuing fresh enforcement notices to one or more of the appellants. I agree. Council is, on my reading of the PA, free to issue new enforcement notices, provided it holds the belief required by s 168(1) of the PA.
  4. [141]
    Before making final orders in the appeal, I will hear from the parties as to whether further orders, or declaratory relief, can be granted under s 47(2) of the Planning & Environment Court Act 2016 in relation to: (1) the development offence committed; and (2) consequential orders that reflect the substance of exhibit 6. In the event this course requires the making of an application, I can indicate I would be positively disposed to grant leave to make such an application orally to minimise further cost.
  5. [142]
    I will adjourn the appeal for review to 16 April 2021 to hear from the parties in relation to paragraph [141].

Conclusion

  1. [143]
    It is ordered that the appeal be listed for review on 16 April 2021.

A

Judgment-Image

Footnotes

[1]  s 43, Planning & Environment Court Act 2016.

[2]  s 45(3), Planning & Environment Court Act 2016.

[3]  Affidavit of C Serratore, para 2.

[4]  Ex. 3, Respondent’s Aerial Photographs, p.1.

[5]  Affidavit of A Hill, exhibit ARH-1, p.12; and Affidavit of S M Adamson, exhibit 1, p.21.

[6]  Affidavit of A R Hill, exhibit ARH-1, p.24, Figure 13.

[7]  Affidavit of C Serratore, para 42.

[8]  Affidavit of D J Stanton, exhibit DJS-2, paragraph 17.

[9]  Affidavit of R H Friend, exhibit 1, s 3.3, p.16.

[10]  Affidavit of C Serratore, para 15.

[11]  Affidavit of C Serratore, para 41.

[12]  Affidavit of A R Hill, exhibit ARH-1, p.18.

[13]  Affidavit of C Serratore, para 30.

[14]  Affidavit of C Serratore, para 31.1.

[15]  Affidavit of C Serratore, para 42.

[16]  Affidavit of C Serratore, para 40.

[17]  This distance was intended to take into account the height of existing trees and widths of canopies.

[18]  Under s 167 of the PA.

[19]  See Schedule 2 of the PA, subparagraph (b) of the definition.

[20]  Ex.1, Tab 1.

[21]  Affidavit of C Serratore, para 44.

[22]  Affidavit of D J Stanton, exhibit DJS-1, para 18.

[23]  Affidavit of D J Stanton, exhibit DJS-1, para 18.

[24]  See paragraph [74].

[25]  Either as a principal offender, or party to the offence.

[26]  Reprint as at 9 May 2018.

[27] Vines v Djordjevitch [1955] 91 CLR 512, 519.

[28]  s 161, PA.

[29]  Effect of temporary use licences - see subsection (4).

[30]  Existing uses and rights protected.

[31]  The nature of that right is confirmed by s 46(1) of the PA, which is not an exemption provision stated in s 161.

[32]  A superseded planning scheme request.

[33]  See s 264 of the PA and s 70 and Schedule 22, Part 1, item (1)(zm) of the Planning Regulation 2017.

[34]  The certificate must be kept available for public inspection – see s 264(2) of the PA.

[35]  Which must be made available for public inspection – see Schedule 22 of the Planning Regulation 2017.

[36]  Both the conditions, and any agreement need to be available for public inspection as required by Schedule 22 of the Planning Regulation 2017. Further, the documents would need to form part of a standard planning and development certificate for the land, if requested: s 265 of the PA and s 71 and Schedule 23, item 2, para (1)(a) and (j) of the Planning Regulation 2017.

[37] Phillips v Spencer [2005] 2 Qd R 47, [34].

[38]  s 168(5), PA.

[39]  Ex.6.

[40]  Ex.10, para 1.2.

[41] Crowther v State of Queensland [2003] QPELR 346, 362-363, citing Caloundra City Council v McGreath [1998] QPELR 178, 182 and Hawkins & Izzard v Permarig Pty Ltd & Brisbane City Council (No.3) [2001] QPELR 423, 429.

[42] Briginshaw v Briginshaw (1938) 60 CLR 336.

[43]  Affidavit of C Serratore, para 42.

[44]  Affidavit of C Serratore, paras 32 to 39. 

[45]  Affidavit of C Serratore, para 31, 33 to 38 and Affidavit of A Serratore, para 12.

[46]  Affidavit of C Serratore, paras 32 to 39.

[47]  Ex.10, para 4.2.

[48]  Ex.4, Tab 10, Map ZM2.

[49]  Which is admitted at paragraph 3 of the Second Further Amended Notice of Appeal (Ex.1, Tab 7).

[50]  Ex.4, Tab 8, p. 5-15 to 5-17.

[51]  Ex.4, Tab 11, Map OM2.1.

[52]  Ex.4, Tab 9, p.13-1.

[53]  Subject to s 163(2) of the PA.

[54]  Affidavit of A R Hill, exhibit ARH-1, p.35, s 6.1.

[55]  Affidavit of A R Hill, exhibit ARH-1, p.36, Table 7 – The table contains evidence of Mr Hill and Mr Friend. Where there is a difference with respect to average widths, I have preferred Mr Hill’s evidence because he, unlike Mr Friend, was able to undertake onsite measurements.

[56]  It was also intended to protect existing electricity infrastructure in the southern part of C10.

[57]  Affidavit of C Serratore, para 41.2.

[58]  Affidavit of A R Hill, exhibit ARH-1, p.36, Table 7.

[59]  Affidavit of C Serratore, para 41.1, 41.3, 41.7 and 41.8.

[60]  Affidavit of A R Hill, exhibit ARH-1, p.36, Table 7.

[61]  Affidavit of R H Friend, exhibit 1, p.14 of report.

[62]  Affidavit of C Serratore, para 41.10.

[63]  Affidavit of A R Hill, exhibit ARH-1, p.36, Table 7.

[64]  Affidavit of C Serratore, para 41.4 to 41.6.

[65]  Affidavit of R H Friend, exhibit 1, p.14 of report.

[66]  Affidavit of C Serratore, para 41.11.

[67]  Respondent’s table of accepted exemptions.

[68]  Ex.1, Tab 5, para 2.

[69]  Ex.12.

Close

Editorial Notes

  • Published Case Name:

    Serratore & Anor v Noosa Shire Council

  • Shortened Case Name:

    Serratore v Noosa Shire Council

  • MNC:

    [2021] QPEC 21

  • Court:

    QPEC

  • Judge(s):

    Williamson QC DCJ

  • Date:

    09 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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