PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Booth v Yardley & Anor [2006] QPEC 119
PARTIES:
CAROL JEANETTE BOOTH
Applicant
V
RICHARD GEORGE YARDLEY
First Respondent
And
ANTJE GESINA YARDLEY
Second Respondent
FILE NO/S:
BD 2845/2006
DIVISION:
Planning and Environment
PROCEEDING:
Application
ORIGINATING COURT:
Planning and Environment Court
DELIVERED ON:
30 November 2006
DELIVERED AT:
Brisbane
HEARING DATE:
21 November 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
It is ordered that:
1unless and until the respondents have obtained an authority under the Nature Conservation Act 1992 to take flying-foxes (Genus Pteropus) by the use of the electric grids on their property at Hosking Road, Mirriwinni (the land described as Lot 1 on RP 712412, County of Nares, Parish of Bellenden Ker) the respondents stop and/or not start electrocuting flying-foxes by use of the grid system on that property;
2within three months of the date of this order the First Respondent and the Second Respondent dismantle or cause to be dismantled any electric grid system constructed for the purpose of electrocuting flying-foxes (Genus Pteropus) on that property unless the taking of flying-foxes by electrocution using such an electric grid is specifically authorised under s 88 of the Nature Conservation Act 1992.
CATCHWORDS:
ENVIRONMENT - NATURE CONSERVATION - taking of protected animal - flying foxes – electric grid on property – prevention of damage to lychee crop - Nature Conservation Act 1992: ss88; 173D; 173F; 173G
Attorney-General (WA) v Marquet [2003] HCA 67
Bone v Mothershaw (2003) 2 QdR 600
Booth v Bosworth (2001) 114 FCR 39
Booth v Frippery Pty Ltd [2006] QCA 74
Burns v State of Queensland (2004) QSC 434
Burns v State of Queensland (2006) QCA 235
Caloundra City Council v Taper Pty Ltd (2003) QPELR 558
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 149
Chu Kheng Lim v Minister for Immigration, Local Government & Ethnic Affairs (1992) 176 CLR 1
Coleman v Power (2004) 220 CLR 1
Commonwealth v Queensland (1975) 134 CLR 298
Dore v Penny [2006] QSC 125
Dore v State of Queensland [2004] QDC 364
Fardon v Attorney-General for the State of Queensland (2004) 210 ALR 50
Horta v Commonwealth (1994) 181 CLR 183
Humane Society International Inc v Kyodo Sempaku Kaisha Ltd (2006) FCA 116
Kable v DPP (1996) 189 CLR 51
Mudie v Gainriver Pty Ltd (2002) 2 Qd R 53
Newcrest Mining (WA) Limited v Commonwealth of Australia [1997] HCA 38
NRMCA (Qld) Ltd v Andrew (1992) QdR 706
Phillips v Spencer [2005] QSC 053
Phillips v Spencer [2005] QCA 317
Plenty v Dillon (1991) 171 CLR 635
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Warringah Shire Council v Sedecic (1987) 10 NSWLR 335
Wilson v Anderson [2002] HCA 29
Woolworths Ltd v Caboolture Shire Council (2004) QPELR 634Legislation cited
Acts Interpretation Act 1901
Constitution of Australia
Constitution of Queensland 2001
Criminal Code (Qld)
Criminal Code Act 1995 (Cth)
Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Environment Protection Act 1994
Human Rights…
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- AGLC
- Booth v Yardley [2006] QPEC 119
- Case
- [2006] QPEC 119
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the respondents were required to obtain an authority under the Nature Conservation Act 1992 before using an electric grid to prevent damage to their lychee crop by flying foxes. The court needed to determine the scope of the provisions of the Act that applied to the respondents' actions and whether the use of the electric grid constituted a taking of the protected animals as defined in the Act.
The court found that the electric grid system used by the respondents constituted a taking of protected animals within the meaning of the Nature Conservation Act 1992. The court held that the respondents were required to obtain an authority under the Act before using the electric grid to prevent damage to their crop by flying foxes. The court noted that the Act provided for the taking of protected animals only under certain circumstances, such as for scientific or educational purposes, or to prevent damage to property where other measures had failed or were impractical. The court found that the respondents had not demonstrated that other measures were impractical or had failed, and therefore were not entitled to use the electric grid to take the flying foxes.
The court granted the applicants' orders, restraining the respondents from using the electric grid to kill flying foxes unless and until they obtained an authority under the Nature Conservation Act 1992. The court also ordered the respondents to dismantle the electric grid system within three months of the date of the order unless they obtained the necessary authority.
Orders
Orders of the court
It is ordered that:
1unless and until the respondents have obtained an authority under the Nature Conservation Act 1992 to take flying-foxes (Genus Pteropus) by the use of the electric grids on their property at Hosking Road, Mirriwinni (the land described as Lot 1 on RP 712412, County of Nares, Parish of Bellenden Ker) the respondents stop and/or not start electrocuting flying-foxes by use of the grid system on that property;
2within three months of the date of this order the First Respondent and the Second Respondent dismantle or cause to be dismantled any electric grid system constructed for the purpose of electrocuting flying-foxes (Genus Pteropus) on that property unless the taking of flying-foxes by electrocution using such an electric grid is specifically authorised under s 88 of the Nature Conservation Act 1992.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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