Glasgow v Hall - [2007] QCA 19

SUPREME COURT OF QUEENSLAND

CITATION:

Glasgow v Hall [2007] QCA 19

PARTIES:

KEITH RONALD GLASGOW
(appellant/applicant)
v
PETER THOMAS HALL
(respondent/respondent)

FILE NO/S:

CA No 273 of 2006
DC No 25 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s118 DCA (Criminal)

ORIGINATING COURT:

District Court at Rockhampton

DELIVERED EX TEMPORE ON:

2 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

2 February 2007

JUDGES:

McMurdo P, Jerrard JA and Holmes JA
Separate reasons for judgement of each member of the Court, each concurring as to the orders made.

ORDER:

Application for extension of time within which to apply for leave to appeal refused with costs

CATCHWORDS:

ENVIRONMENT AND PLANNING – SOIL CONSERVATION AND TREE PRESERVATION – LAND CLEARING – where applicant cleared land contrary to s 4.3.1(1) of the Integrated Planning Act 1997 (Qld) – where convicted of the offence and fined $10,000 and costs – whether warrant to enter land was valid under s 68(6) of the Vegetation Management Act 1999 (Qld)

REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – ESTATES IN FEE SIMPLE – GENERAL ATTRIBUTES OF – where applicant carried out assessable development on freehold land without a permit – where applicant contends that an estate in fee simple is excluded from legislative power – whether the State has power to legislate with respect to use or management of freehold land – whether the definition of freehold land in the Land Act 1994 (Qld) includes estates in fee simple

Integrated Planning Act 1997 (Qld), s 4.3.1(1), s 4.3.18(3)
Land Act 1994 (Qld)
Property Law Act 1974 (Qld)
Vegetation Management Act 1999 (Qld), s 68(6)

Bone v Mothershaw[2002] QCA 120; [2003] 2 Qd R 600, followed
Burns v State of Queensland & Anor[2006] QCA 235; CA No 526 of 2006, 23 June 2006, followed
Wilson v Raddatz[2006] QCA 392; CA No 276 of 2006, 10 October 2006, considered

COUNSEL:

No appearance for the applicant, the applicant’s submissions were heard on the papers
D J Grealy for the respondent

SOLICITORS:

No appearance for the applicant
Commonwealth Director of Public Prosecutions for the respondent

HOLMES JA: The applicant was charged by complaint with one count of assessable development on freehold land without a permit contrary to section 4.3.1(1) of the Integrated Planning Act 1997 (Qld). He was convicted of that offence on the 16th February 2005, and was fined $10,000 and ordered to pay costs. An appeal against that conviction under section 222 of the Justice Act 1886 (Qld) was dismissed on the 2nd March 2006. On the 25th September 2006, well outside the statutory time limit, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal, together with a proposed application for leave.

Submissions have been filed on the applicant's behalf. They were prepared by Mr David Walter, who is not, it appears, a lawyer. Those submissions exceed the prescribed length…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Glasgow v Hall

Details

AGLC: Glasgow v Hall [2007] QCA 19
Case: [2007] QCA 19
Decision Date: 2 February 2007

CaseChat Overview and Summary

The applicant in this case, Glasgow, appealed against an order of the Land Court of Queensland, which found that he had cleared land contrary to section 4.3.1(1) of the Integrated Planning Act 1997 (Qld). The applicant was convicted of the offence and fined $10,000 and costs. The respondent, Hall, applied for a warrant to enter the land under section 68(6) of the Vegetation Management Act 1999 (Qld). The applicant challenged the validity of the warrant, arguing that the Land Court had no jurisdiction to hear the matter and that the warrant was therefore invalid. The applicant further contended that the State did not have the power to legislate with respect to the use or management of freehold land and that the definition of freehold land in the Land Act 1994 (Qld) did not include estates in fee simple.

The court considered the applicant's arguments and found them to be without merit. The court held that the Land Court had jurisdiction to hear the matter and that the warrant was valid. The court further held that the State had the power to legislate with respect to the use or management of freehold land and that the definition of freehold land in the Land Act 1994 (Qld) included estates in fee simple. The applicant's contention that an estate in fee simple was excluded from legislative power was rejected by the court.

The court dismissed the appeal and refused the application for an extension of time within which to apply for leave to appeal. The court found that the applicant's arguments were not sufficient to warrant an extension of time and that the applicant had not demonstrated any special circumstances that would justify an extension. The court ordered the applicant to pay the costs of the appeal.

In conclusion, the court found that the warrant to enter the land was valid and that the State had the power to legislate with respect to the use or management of freehold land. The applicant's arguments were rejected and the appeal was dismissed. The court refused the application for an extension of time within which to apply for leave to appeal and ordered the applicant to pay the costs of the appeal.

Orders

Orders of the court

Application for extension of time within which to apply for leave to appeal refused with costs

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.

CITATION:	Glasgow v Hall [2007] QCA 19
PARTIES:	KEITH RONALD GLASGOW (appellant/applicant) v PETER THOMAS HALL (respondent/respondent)
FILE NO/S:	CA No 273 of 2006 DC No 25 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s118 DCA (Criminal)
ORIGINATING COURT:	District Court at Rockhampton
DELIVERED EX TEMPORE ON:	2 February 2007
DELIVERED AT:	Brisbane
HEARING DATE:	2 February 2007
JUDGES:	McMurdo P, Jerrard JA and Holmes JA Separate reasons for judgement of each member of the Court, each concurring as to the orders made.
ORDER:	Application for extension of time within which to apply for leave to appeal refused with costs
CATCHWORDS:	ENVIRONMENT AND PLANNING – SOIL CONSERVATION AND TREE PRESERVATION – LAND CLEARING – where applicant cleared land contrary to s 4.3.1(1) of the Integrated Planning Act 1997 (Qld) – where convicted of the offence and fined $10,000 and costs – whether warrant to enter land was valid under s 68(6) of the Vegetation Management Act 1999 (Qld) REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – ESTATES IN FEE SIMPLE – GENERAL ATTRIBUTES OF – where applicant carried out assessable development on freehold land without a permit – where applicant contends that an estate in fee simple is excluded from legislative power – whether the State has power to legislate with respect to use or management of freehold land – whether the definition of freehold land in the Land Act 1994 (Qld) includes estates in fee simple Integrated Planning Act 1997 (Qld), s 4.3.1(1), s 4.3.18(3) Land Act 1994 (Qld) Property Law Act 1974 (Qld) Vegetation Management Act 1999 (Qld), s 68(6) Bone v Mothershaw[2002] QCA 120; [2003] 2 Qd R 600, followed Burns v State of Queensland & Anor[2006] QCA 235; CA No 526 of 2006, 23 June 2006, followed Wilson v Raddatz[2006] QCA 392; CA No 276 of 2006, 10 October 2006, considered
COUNSEL:	No appearance for the applicant, the applicant’s submissions were heard on the papers D J Grealy for the respondent
SOLICITORS:	No appearance for the applicant Commonwealth Director of Public Prosecutions for the respondent