MAGISTRATES COURTS OF QUEENSLAND
CITATION:
GCCC v Anderson and Anderson [2019] QMC 8
PARTIES:
GOLD COAST CITY COUNCIL
(Complainant)
v
ANDERSON, Allan Roy and
ANDERSON, Julie Anne(Defendants)
FILE NO/S:
MAG00030162/18(8)
PROCEEDING:
Sentence
ORIGINATING COURT:
Magistrates Court
DELIVERED ON:
8 Apr 2019
DELIVERED AT:
Southport
HEARING DATE:
2 Nov 2018
MAGISTRATE:
A. H. Sinclair
ORDER:
Each defendant is convicted and fined $15,000 with 6 months to pay in default 100 days imprisonment and ordered to pay $1,500 in legal costs and $6,590.43 in investigation costs with 6 months to pay in default 50 days imprisonment. No convictions are recorded.
CATCHWORDS:
SUSTAINABLE PLANNING ACT – CARRYING OUT ASSESSABLE DEVELOPMENT WITHOUT A PERMIT – TREE CLEARING – FACT FINDING ON SENTENCE – PURPOSE OF CLEARING – COSTS – RECOVERY COSTS
Evidence Act 1977 s.132C
Justices Act 1886
Sustainable Planning Act 2009 s.614
McSweeney & Anor. v Spiller [2002] QDC 295
Stephen David Segal (Judge Dorney QC Southport 25.10.2013) unreported
COUNSEL:
K. Wylie for GCCC
D. Favell for Defendants
SOLICITORS:
McInnes Wilson for GCCC
Gadens Lawyers for Defendants
The defendant are husband and wife. They each pleaded guilty to clearing 60 mature native trees from their hinterland rural residential property where it was mapped as remnant vegetation and essential habitat for two vulnerable native species.
The question of penalty required resolving the following issues at sentence:
1. Whether the defendants cleared for views or bushfire protection
2. Whether the costs included by the Council in obtaining a bushfire report are properly recoverable.
3. Whether the legal costs of the Council should be fully recovered
4. The appropriate penalty in all the circumstances.
The Facts
The parties tendered a statement of agreed facts as Exhibit 1. It sets out (in summary):
1. Between about Nov 2014 and April 2018 the Defendants owned a rural block at Wongawallen.
2. As at March 2017 the property
(a) Contained a dwelling
(b) Was 24,590m2
(c) Was in the Rural Zone
(d) Was subject to the Environmental Significance – Vegetation Management Overlay
(e) Was mapped in the high to very hire bushfire hazard area.
3. A tree lopping firm was engaged to clear vegetation.
4. On 14 March 2017 it attended and commenced clearing.
5. Council attended that day and directed clearing to stop.
6. On 29 March 2017, Council confirmed 60 mature trees and a number of smaller trees had been removed.
7. There was no clearing permit.
During sentencing submissions it was put for the Defendants, that they had engaged the tree lopping firm to reduce bushfire risk.
Exhibit 2 was a group of photos of the site showing the damage and the extensive views to the ocean from the cleared land. The exhibits show good long distance views from the site of the clearing. At my questioning about whether Council accepted bushfire as the real reason for the clearing, Council invited me conclude that the clearing was for views.
Council had a surveyor produce Exhibit 5 which shows the precise location of each stump on…
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- Case
- [2019] QMC 8
- Decision Date
CaseChat Overview and Summary
The primary legal issues revolved around the defendants' conduct in relation to the clearing of trees and whether it constituted assessable development under the Sustainable Planning Act. The court had to ascertain the purpose of the tree clearing and evaluate the consequences for the defendants. This involved assessing whether the clearing was a permissible activity or if it required a permit and, if so, whether the defendants had complied with the necessary regulatory requirements. The court also had to determine the appropriate penalties and costs to be imposed on the defendants.
In delivering the decision, the court found that the defendants had indeed carried out assessable development without a permit. The clearing of trees was deemed to have occurred for a specific purpose, which was found to be in breach of the Sustainable Planning Act. The court imposed a fine of $15,000 on each defendant, with the option to serve 100 days imprisonment if the fine was not paid within six months. Additionally, the defendants were ordered to pay $1,500 in legal costs and $6,590.43 in investigation costs, with the same penalty of 50 days imprisonment if these costs were not settled within the stipulated period. Notably, no convictions were recorded against the defendants.
The final orders of the court mandated that each defendant pay the imposed fines and costs within six months, with the specified imprisonment terms applying if the payments were not made on time. This decision underscores the importance of adhering to the provisions of the Sustainable Planning Act and the consequences of non-compliance. The court's ruling highlights the need for individuals to obtain the necessary permits for assessable development activities, particularly those involving tree clearing.
Orders
Orders of the court
Each defendant is convicted and fined $15,000 with 6 months to pay in default 100 days imprisonment and ordered to pay $1,500 in legal costs and $6,590.43 in investigation costs with 6 months to pay in default 50 days imprisonment. No convictions are recorded.
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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