Glasgow v Hall

[2006] QDC 42

DISTRICT COURT OF QUEENSLAND

CITATION:

Glasgow v. Hall [2006] QDC 042

PARTIES:

KEITH RONALD GLASGOW

Appellant

AND

PETER THOMAS HALL

Respondent

FILE NO/S:

BD25 of 2005

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Biloela

DELIVERED ON:

2 March 2006

DELIVERED AT:

Rockhampton

HEARING DATE:

7 October 2005

JUDGE:

Nase DCJ

ORDER:

Appeal is dismissed

CATCHWORDS:

COUNSEL:

Mr D. Walter appeared as agent for the appellant

Mr Grealy appeared for the respondent

SOLICITORS:

Crown Solicitor for the appellant

1. In the late 1980s Mr and Mrs Glasgow purchased a property “Valentine Plains” situated near Calliope in Central Queensland.  Mr and Mrs Glasgow worked the property.

1. More recently, part of the property was cleared to provide feed for stock; and, in the long term to replace the native vegetation with grasses.

1. Mr Glasgow did not have a permit or other authority to clear the land.

1. The land clearing was investigated, and in due course proceedings were commenced against Mr Glasgow in the Magistrates Court for breach of the Integrated Planning Act 1997. Technically the charge laid was one under the Integrated Planning Act (section 4.3.1) of starting an assessable development without a development permit.[1]

   [1]The assessable development being clearing “remnant vegetation” as defined in the Vegetation Management Act 1999.

1. Mr Glasgow was found guilty by an Acting Magistrate on 16 February 2005.  He was fined $10,000 and ordered to pay costs amounting to $15,759.25.  The proceeding before me is an appeal from the decision of the Acting Magistrate.

1. At the appeal a Mr D. Walter was allowed (without objection) to represent Mr Glasgow.  Mr Walter is not legally qualified but has obviously made his own study of the issues raised on the appeal.

The issues

1. The issues argued on appeal are purely questions of law.  Two points are raised.  The first is that the State of Queensland lacks the legal power to prevent Mr Glasgow clearing his land.  This immunity from legislative control is said to stem from the fact the Glasgows hold an estate in fee simple in the land.

1. The second point is that the legislative scheme for the regulation of land clearing applies only to freehold land.  Mr Walter’s argument is that the term “freehold” or “freehold land” used in the Integrated Planning Act does not include land held in fee simple, or if it does, then it should be understood as a reference to freehold land owned by the State as distinct from privately owned freehold land.

Can the State regulate land clearing on land held in fee simple? (the first point)

1. Both authority and conventional legal analysis are against Mr Walter’s argument. A judgment in the Court of Appeal[2], a single judgment of De Jersey CJ[3], and judgments by a number of District Court judges are against the argument.[4]  I will endeavour to explain in my own words where I think Mr Walter has fallen into error.

   [2]Bone v Mothershaw [2002] QCA 120

   [3]Burns v State of Queensland [2004] QSC 434

   [4]Brabazon DCJ (Wilson…