Bone v Mothershaw B29/2002

[2003] HCATrans 829

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B29 of 2002

B e t w e e n -

ROBERT NEVILLE BONE

Applicant

and

JOHN WILLIAM MOTHERSHAW

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 25 JUNE 2003, AT 10.15 AM

Copyright in the High Court of Australia

MR J.W. GREENWOOD, QC:   May it please the Court, I appear with my learned friend, MR R.G. MAGUIRE, for the applicant.  (instructed by Carne Reidy Herd)

MR M.D. HINSON, SC:   If your Honours please, I appear with my learned friend, MR E.J. MORZONE, for the respondent.  (instructed by Brisbane City Legal Practice)

McHUGH J:   Yes, Mr Greenwood.

MR GREENWOOD:   May it please the Court.  Mr Bone is a farmer who lives on the outskirts of the Greater Brisbane area.  Part of his farm had been cleared before 1991.

GUMMOW J:   How far would his farm be from the central business district of Brisbane, roughly?

MR GREENWOOD:   Your Honour, I would suggest about 10 miles, somewhere of that sort.  Your Honour, Brisbane at one stage was vying with Los Angeles as the biggest geographical ‑ ‑ ‑

GUMMOW J:   Yes.

MR GREENWOOD:   So there is quite a lot of farmland and grazing land in the district.  He cleared the balance of his farm in 1999.  He was thereupon ordered by the Brisbane City Council to unclear it, to submit a program for restoring the vegetation.  He refused and he was fined $20,000.  The Council based the prosecution on a vegetation protection ordinance introduced by it on 30 November 1991.  That ordinance allows the issue of vegetation protection order.  Such an order was issued against Mr Bone on 31 March 1992 and it related to all vegetation on his land.

The actual order is in our material in item 1 and if I could invite the Court’s attention to item 1.  The first page there is a map of the area and the second page indicates Mr Bone’s land and the way that the order relates to him.  The Court will see that it is hatched in a horizontal fashion and that that means that all vegetation is covered by the order. 

The rehabilitation order is also included in our material as item 2.  It too possesses a map on about the third page and that indicates the area of the rehabilitation order that was addressed to him.  Presumably, the blank part up in the north-east corner is the part that had been cleared in earlier years, whereas the hatched part relates to the area which he had cleared recently.

It is probably not necessary to dwell on that.  The actual Chapter 22 which is the foundation of this particular action by the Brisbane City Council is item 3 and there are a few matters there to which I wish to refer very briefly.  We have provided it in two versions, if the Court pleases.  One is the actual Queensland Government Gazette, which is not all that easy to read.  The other one is from the Internet.  I would prefer to use the Government Gazette version if it is legible.

McHUGH J:   Yes, it is legible.

MR GREENWOOD:   I have already said that the order related to all vegetation on the land.  If the Court looks at page 1577 – it is the second page in the Government Gazette there – in the left-hand column there is paragraph 3 which deals with various definitions.  The Court might see that in those definitions in paragraph 3, about the fifth or sixth definition down, there is a definition of “interfere with”:

“interfere with” means damage, mark, move, burn, ignite, use or in any way otherwise interfere with –

Then we have “owner”:

“owner” has the meaning ascribed to it in subsection 3(1) of the Local Government Act 1936 –

and that is a very, very wide definition which includes lessees and all sorts of people.  Then the next one is “vegetation”, which is a few further down:

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

So it is a wide definition.  That, of course, is also at page 1577, left column.  Now, if I might stay with that page for a moment and go to clause 5.  Clause 5, in our respectful submission and properly interpreted, is the reason for this particular ordinance, that is, environmental protection.  It begins:

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

(a)  a particular tree; or

(b)  a particular group of trees; or

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

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

The way we submitted it to the Court of Appeal was that, properly understood, this whole ordinance is directed to the protection of individual trees or individual species of a particular environmental importance and that if you look at (d), “vegetation of any nature”, the draftsman had in mind things like termite mounds or mounds, vegetation which is used as nests by bush turkeys – and there are a lot of them around Brisbane – where you could not really describe by means of species what you were trying to protect, but you could describe the nature of what you were trying to protect, which is bush turkey mounds.

Now, what the Council did was to interpret that particular provision, “vegetation of any nature”, which we suggest is vegetation of any specific or particular nature, as meaning vegetation of all natures.  So they used it as a justification not for a vegetation protection order which was specifically directed at a matter of environmental importance, but they used it to justify vegetation protection orders such as this one, which relates to all vegetation ‑ ‑ ‑

GUMMOW J:   Now, Justice McPherson dealt with this on page 46 of the application book, line 15 or thereabouts.

MR GREENWOOD:   Yes, your Honour, and it is a perfectly, as it were, intellectually respectable point of view and, indeed, he may be right.  It is just that we submitted that it was the wrong way to construe it but, construing it in that way, it gives this environmental ordinance the potential for a scope of operation which is extraordinarily wide reaching.  That potential was exercised by the Council in this case when they decided to issue vegetation protection orders such as this one, relating to all vegetation, so that the recipient could not either destroy or interfere with any vegetable growth or material of vegetable origin, whether living or dead and whether standing or falling.  So the way they approached it gave this ordinance an extraordinarily wide operation.

The consequence, of course, is that there were many, many aspects of the farmers’ activities which were restricted and perhaps one can, by going to page 1579, look at the operative provisions of this particular chapter and in the course of so doing look at some of the exceptions they make because the way that the exceptions are drafted themselves give a great deal of light with respect to the width.  At page 1579, section 23(1), it starts:

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

Now, that is the fundamental provision.  Then we go on with respect to some exceptions:

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

and there are certain exceptions.  In (b) you are allowed to cut down vegetation which is close to your house and is a danger.  In (c)(iii) you are allowed to remove vegetation if there is “a requirement imposed” upon you under an Act to do so.  The word “requirement” is used.  It has to be a requirement.  It is not simply a question of an entitlement or being permitted to do so.  It is only an offence if there is a requirement.

Then (d) on the second column of 1579 is perhaps the most illuminating of all because it indicates that what the Council is doing here is, picking the date, 30 November 1991, and giving certain exemptions for uses of the land that existed on or prior to that date, so that you are exempted from the effect of an order in the case of (d)(ii), which is close to the top:

the destruction or removal of vegetation –

.  which is included in an area of cultivation; or

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

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

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

So that if a farmer has already been grazing cattle in a paddock on 30 November 1991, then even if a vegetation protection order is issued against him, he is not in breach, he can continue grazing that paddock.  If a farmer has cultivated a crop prior to 30 November 1991 in a particular paddock and used it for that purpose, he can continue to cultivate and harvest his crop, even though a vegetation protection order is issued against him. 

If an ordinary resident has established a lawn or a rose garden in his house prior to 30 November 1991, then even though a vegetation protection order issues against him, he can continue to mow his lawn and he can continue to pick his roses.  But if we have a situation where after that date a farmer decides to clear a new paddock, which this farmer did, or decides to plough a new field and plant a new crop, then in that case he no longer has the protection of that particular…..and if he receives a vegetation protection order, he can no longer graze his cattle without permission, he can no longer harvest the crop he has planted without permission. 

To use the ordinary example of a resident in a newly developed suburb, a suburb that has been subdivided and developed since 30 November 1991, if he is in the receipt of a vegetation protection order, he cannot mow his lawn and he cannot pick his roses without the permission of the Brisbane City Council.  Now, it is that extraordinary width of the order which has caused such trouble.

Now, it is clear that the whole basis of the rehabilitation order which is issued against this man, or against anybody for that matter, is the existence of a valid vegetation protection order.  Also on the same page, 1579, subparagraph (4) in that second column simply says:

Where any person destroys or interferes with any vegetation in contravention of paragraph (1) –

and paragraph (1), you remember, is the paragraph which says that you cannot destroy or interfere with any vegetation to which a vegetation protection order relates.  Then in such a case:

the Council may, for the purpose of restoring, regenerating or replacing that vegetation, by notice in writing served upon that person require that person within the time specified in the notice –

to do various things.  So that is the whole scheme, as it were, within which this particular new provision operates and one can see the enormous consequences that it has.  Almost any building that is built requires the digging of foundations or the laying of a slab.  The digging of foundations, except perhaps in the desert areas of this country, involves the disturbance of the vegetation, the grass on top of that trench.  The laying of the slab involves interference with, at least, and probably the destruction of, the grass that is underneath that slab. 

So, in all sorts of ways, the necessary and immediate implications of a vegetation protection order of this kind affect many, many aspects of the way farmers and others conduct their businesses and their lives.  Now, Mr Herron, the valuer, summarised it at pages 38 and 39 of the application book.  What Mr Herron, who is one of Australia’s leading valuers, said is:

8.  The VPO removes rights normally associated with the ownership of land.  This effectively strips zoning rights whilst avoiding compensation for injurious affection.

9.  This creates the unavoidable consequences that owners of otherwise comparable property (not subject to a VPO) in other parts of Brisbane (or indeed, elsewhere in the state) have a far broader range of “as of right” uses, and thus their properties have a higher value unless and until they become the subject of a similar VPO.

10.  For instance, as land designated rural, the use of the property may be considerably restricted whilst the VPO subsists.  Were it not for the VPO, “as of right”, the property could be used for a wide range of purposes, eg, poultry farm, horse stud, small crops, turf farm, or commercial timber.

11.  A significant question mark now hangs over the property’s potential for residential or other development, because it is not known to what extent, if any, the Brisbane City Council might reduce the burden imposed by the VPO.

12.  By way of example, there can be no guarantee that any given preferred construction site on the property would be allowed.

Mr Justice McPherson, after considering the many implications of this VPO, summed the matter up.  We have referred to his Honour’s summary of the effect of the VPO at page 67 of our application book.  His Honour said this:

His land has been struck with sterility in relation to the uses he can now lawfully make of it.  Except with Council approval, there is practically nothing he can do with it except continue to grow vegetation and perhaps walk on it . . . For this severe limitation on his rights as owner he has received and will receive no compensation.

His Honour then goes on with another passage which I will be relying upon when I am dealing with the point about the Acquisition of Land Act.

GUMMOW J:   Your time is nearly up, Mr Greenwood.

MR GREENWOOD:   I am sorry, yes.  I have dealt with most of the provisions in the actual written submissions, your Honour.  The submission

that the VPO, in any case, is outside any reasonable matter of environment has been dealt with at pages 68 to 73 and we, of course, rely on Williams v Melbourne Corporation.

The town planning aspects of the matter, the taking of land, we rely upon Mr Justice Thomas’ views quoted at page 76 and Mr Justice Thomas, with respect to the town planning protection that town planning legislation uses, says that the proper approach is to look at the substance of the provisions and if in substance those provisions are town planning in their nature, then in those circumstances, they ought to have the checks and balances that town planning provisions rely upon.  The court, on the other hand, rejected that line of authority and held that only a law that directly determines the use that can be made of land can be characterised as a town planning law or bylaw.

Similarly, the Acquisition of Land Act, we submit, at pages 77, 78 and in our reply at page 100, that the law in Australia recognises the taking of a mere interest in land and it is not necessary, as the Court of Appeal held in this case, that the title should not be deprived of the land owner. 

McHUGH J:   Your time is up, Mr Greenwood.

MR GREENWOOD:   Thank you, your Honours.

McHUGH J:   We need not hear you, Mr Hinson.

This application turns upon the construction of various statutes and instruments of Queensland.  It involves a question respecting the powers of the Brisbane City Council.  In the Court of Appeal, Justice McPherson in paragraph [23] of his reasons at page 51 of the book said that the Council’s action in making the order which it did in this case has resulted in the applicant’s land being struck with sterility in relation to the uses he can now lawfully make of it.  His Honour went on to say that, except with Council approval, there is practically nothing he can do with it except continue to grow vegetation and perhaps walk on it.  Mr Justice McPherson also said, and I quote:

The action taken by the Council was no doubt undertaken in the public interest, as it claimed, of the citizens of Brisbane; but it is not they who will bear the financial disadvantages of the action taken in their interest.  It is of little consolation to him to learn that, as the Council proudly proclaims in some of its material, it is the only local authority in Australia that provides this service (or some stages of it) to a land  owner who is targeted completely free of charge.

However, Justice McPherson felt that he was bound to dismiss the application for leave to appeal.  He said that he felt a measure of sympathy for the scant respect with which the applicant’s rights as owner had been given and which, in his view, had been trampled on.  However, an appeal against the decision below could not in law succeed and the application for leave to appeal in the Court of Appeal had to be dismissed with costs. 

Unfortunately for the applicant, there are insufficient prospects of success on an appeal from the decision of the Court of Appeal which dealt comprehensively with the relevant legal issues.

In his application, the applicant now also seeks to dispute the powers of the Queensland Parliament to enact certain provisions of the Local Government Act 1993 (Qld). However, there are no prospects of success on that ground. Accordingly, special leave must be refused with costs.

AT 10.41 AM THE MATTER WAS CONCLUDED