Burns v Redland City Council

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DISTRICT COURT OF QUEENSLAND

CITATION: 

Burns v Redland City Council [2025] QDC 15

PARTIES: 

DARREN BURNS
(Appellant)

v

REDLANDS CITY COUNCIL  
(Respondent)

FILE NO:

 621/24

DIVISION:

 Criminal

PROCEEDING:

 Appeal

ORIGINATING COURT: 

 Magistrates Court at Brisbane

DELIVERED ON:

28 February 2025

DELIVERED AT:

Brisbane

HEARING DATE: 

23 and 29 August 2024  

JUDGE:

Porter KC DCJ

ORDERS:

1.   The appeal is allowed.

2.   The conviction is set aside.

3. A verdict of not guilty be entered in relation to charge 1, carrying out prohibited development in breach of s. 162 Planning Act 2016. 

4.   The orders of the Magistrates Court made 5 February 2024 imposing a fine of $20,000 and ordering the appellant to pay professional costs and costs of Court, be set aside.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL BY WAY OF REHEARING – where the appellant was a member of the Quandamooka people – where a native title determination had been made by the Federal Court under s. 87 Native Title Act 1993 determining native title rights of Quandamooka people – where the appellant cleared land on North Stradbroke Island which land was the subject of the Determination, for the purpose of constructing a house for his daughter’s family – where the appellant was convicted in the Magistrates court of one count of carrying out prohibited development under s. 162 Planning Act 2016 by clearing native vegetation on prescribed land – whether the trial Judge erred in failing to conclude that the clearing was authorised by the Determination – whether the trial judge erred in failing to conclude that an exemption for clearing vegetation for a traditional Aboriginal cultural activity applied – whether the trial judge erred in concluding that no defence of honest claim of right arose under s. 22(2) Criminal Code Act 1899 (Qld) because the offence was not an offence relating to property – whether the Determination provides an answer to the charge as a matter of law

CRIMINAL LAW – DEFENCE – NATIVE TITLE DETERMINATION – where the land cleared was subject to a Determination of native title – whether the clearing by the appellant for the purpose of constructing a permanent, modern dwelling for his daughter was authorised by the Determination – whether the appellant’s clearing of the land could be considered separate from his purpose in doing so – where the appellant retained a contractor to clear the land – whether the Determination authorised the appellant to exercise rights under the Determination by a non-Quandamooka agent

CRIMINAL LAW – EXEMPTION – TRADITIONAL ABORIGINAL CULTURAL ACTIVITY – where clearing of native vegetation which was exempt clearing work was not unlawful under s. 162 Planning Act – where exempt clearing work included clearing for a traditional Aboriginal cultural activity – whether the trial judge erred by treating evidence adduced on that exemption as inadmissible – whether the trial was unfair because of the effect of an intimation that evidence from Quandamooka people on traditional culture could only be led as expert…

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Details
Case
[2025] QDC 15
Decision Date

CaseChat Overview and Summary

Burns v Redland City Council involved the appellant, a member of the Quandamooka people, who cleared land on North Stradbroke Island, which had been the subject of a Federal Court native title determination. The appellant intended to construct a house for his daughter’s family on the cleared land. He was convicted in the Magistrates Court of carrying out prohibited development by clearing native vegetation on prescribed land. The appellant appealed against his conviction, arguing that the trial judge erred in several respects. Specifically, the appellant contended that the clearing was authorised by the native title determination, that an exemption for clearing vegetation for a traditional Aboriginal cultural activity applied, and that the trial judge erred in concluding that an honest claim of right defence was not available because the offence was not an offence relating to property.

The court examined whether the native title determination authorised the clearing, whether the exemption for traditional Aboriginal cultural activity applied, and whether the honest claim of right defence was available. The court found that the determination did not explicitly authorise the clearing, and that the exemption for traditional Aboriginal cultural activity did not apply because the evidence did not establish that the clearing was part of a traditional activity. The court also found that the honest claim of right defence was available because the offence was related to property, and the prosecution had not excluded beyond reasonable doubt that the appellant believed he had the right to clear the land for building purposes.

The appeal was allowed, the conviction was set aside, and a verdict of not guilty was entered. The orders of the Magistrates Court imposing a fine and ordering the appellant to pay professional costs and costs of Court were also set aside.

Orders

Orders of the court

1. The appeal is allowed.

2. The conviction is set aside.

3. A verdict of not guilty be entered in relation to charge 1, carrying out prohibited development in breach of s. 162 Planning Act 2016.

4. The orders of the Magistrates Court made 5 February 2024 imposing a fine of $20,000 and ordering the appellant to pay professional costs and costs of Court, be set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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