Lund v Minister for Natural Resources, Mines and Water
[2006] QLC 39
•30 June 2006
LAND COURT OF QUEENSLAND
CITATION: Lund v Minister for Natural Resources, Mines and Water [2006] QLC 39 PARTIES: Charles H Lund and Grace E Lund
(appellants/respondents)v. Minister for Natural Resources, Mines and Water
(respondent/applicant)FILE NO.: LA2006/0025 DIVISION: Land Court of Queensland PROCEEDING: In the matter of an appeal pursuant to ss.427 and 428 of the Land Act 1994 concerning a tree clearing permit application. DELIVERED ON: 30 June 2006 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Mr RS Jones ORDERS: 1. The application for orders striking out the appeal for lack of jurisdiction and/or in the alternative for orders striking out the pleadings is refused.
2. The application seeking a declaration that the appeal be limited to the 2002 application for a tree clearing permit and orders requiring the appellant to clearly and precisely identify the basis for the appeal is refused.
3. The application seeking an order limiting litigation (especially interlocutory matters) to the "St Albans" property is refused.
4. Orders 10, 11 and 12 of the orders of the Court made on 21 April 2006 be varied to read as follows:
"10 The parties arrange a mutual inspection of the subject property on or before 14 July 2006;
11 There be a conference between the parties and their experts, if they choose, on or before 14 July 2006;
12 The experts upon whose evidence the parties intend to rely in each area of expertise exchange short form reports, confer and file and serve a document setting out the areas of agreement and the areas of disagreement and reasons for any disagreement on or before 14 July 2006."
CATCHWORDS: Appeal pursuant to ss.427 and 428 of the Land Act 1994 – jurisdiction of Land Court – Striking out of Notice of Appeal. APPEARANCES: Mr W Cochrane of Counsel for the appellants/ respondents
Mr K Fisher of Counsel for the respondent/applicant
These proceedings concern two applications made on behalf of the Minister for the Department of Natural Resources, Mines and Water ("the Department"). The first application primarily seeks orders to have the appeal presently before this Court struck out. The second seeks variations to the timetable established pursuant to consent orders made by the President of this Court on 21 April 2006.
For reasons concerning the future conduct of the appeal and a tree clearing moratorium that I am told will come into force in December of this year, there is a degree of urgency involved in the resolution of these applications.
Background
The appellants, Mr and Mrs Lund, are the respondents to the applications before me and are the lessees of a significant grazing property known as "St Albans". St Albans is run as part of a larger family grazing enterprise involving two other properties known as "Laglan" and "Madison".
On 2 March 1999, Mr and Mrs Lund purported to make an application for a tree clearing permit using what I understand to be a pro forma document provided by or on behalf of the Department. This document was signed by a person described as "CH Lund (JNR)". For reasons which I do not consider necessary to go into here, on 17 May 2002 another application for a tree clearing permit was completed for and on behalf of Mr and Mrs Lund. This document was signed by a Mr Peter Austin Newman, an agricultural consultant and the son-in-law of Mr and Mrs Lund. It is also a pro-forma document provided by or on behalf of the Department.
There is no doubt in my mind that both applications were lodged in respect of the same property, namely Lot 1 on Plan RU 89, Parish of Beresford containing an area of about 35,600 ha. It seems to me, by reference to these applications, that the purpose of the tree clearing permit was to facilitate the appellants' increasing, or at least attempting to increase, the carrying capacity of St Albans. Applications to permit tree clearing on the Laglan and Madison properties were also made and processed but are not a part of the appeal proceedings now before the Court.
On 13 April 2004 the Department issued a Tree Clearing Permit for St Albans subject to a number of specified conditions. On 10 May 2004, Mr Peter Newman wrote to the Department advising that, among other things, he wished to appeal its decision which, in his opinion, restricted the permitted area for clearing to approximately one-third of that applied for.
By reference to the affidavit of Mr Mark Venz (Exhibit 1), it would appear that the next relevant document following the correspondence of 10 May 2004 was that generated by the Department identified as a "Report On The Application For Internal Review …". This document comprises 45 pages culminating in a recommendation that another tree clearing permit incorporating new conditions be issued in "substitution" for the first tree clearing permit. This recommendation was approved by a Mr Simon Cottier, the Principal Natural Resource Officer of the Department on 22 December 2005.
Also on 22 December 2005, the Department wrote to Mr and Mrs Lund advising that a review of the original decision had been conducted and that it had been decided to "substitute the original decision to partially refuse the application …". This letter also identified a number of matters relevant to the rights of persons to appeal such an administrative decision under Part 3 Division 3 of the Land Act 1994. The letter also identified the reasons for the decision reached by the Department. The reasons were described as: "Reasons for the area refused are provided in Attachment 1 – Statement of Reasons". The Statement of Reasons comprises of seven pages and, among other things, 62 so called "Findings Of Fact" that the Department presumably found relevant in its consideration of the applications before it.
On 3 February 2006 a Notice of Appeal to the Land Court was filed. The decision appealed against was described as "Internal Review of Tree Clearing Permit 2004/001383 on PH 12/5463" dated 22 December 2005. On 12 May 2006 an amended Notice of Appeal was filed. The decision appealed against in this document was the same as that identified in the Notice of Appeal filed on 3 February 2006. On 19 June 2006 this Court received a further amended Notice of Appeal which, relevant to these applications, now described the decision appealed against in the following terms:
"The original decision of the respondent to partially refuse an application for a tree clearing permit by the appellant dated 02/03/1999 as amended by the application document dated 17/05/2002 and the terms and conditions of
Internal Reviewtree clearing permit 2004/001383 on PH 12/5463".The date of the decisions appealed against however remained unchanged being 22 December 2005.
The material differences between the original Notice of Appeal and that filed on 19 June 2006 is the introduction of the words prior to the words "internal review …" and the then striking out of the words "internal review". There are some other amendments but they are of no relevance to these applications.
It seems sufficiently clear that the original Notices of Appeal were directed towards appealing the review decision of the Department dated 22 December 2005. However, for reasons which were not made entirely clear to me, but which Mr Cochrane described as involving matters of "convenience" for his clients, the latest Notice of Appeal was aimed at the earlier decision of the Department to issue the conditional permit dated 13 April 2004.
The deletion of the words "internal review" in the description of the decision appealed against in the most recent Notice of Appeal, according to Mr Fisher, is of particular significance.
The "strike out" application
The material facts and matters relied on by Mr Fisher and the relief sought are set out in the application filed on behalf of the Department on 16 June 2006 and I do not intend to repeat them here. In his written submissions and more particularly in his oral submissions, Mr Fisher more precisely identified the grounds upon which he relied to have the appeal struck out. These could be summarised under four general headings being:
(i)The tree clearing applications were in effect void ab initio as they were not executed in accordance with the requirements of the Land Act 1994. More particularly the complaint was that the tree clearing applications were not personally signed by both Mr and Mrs Lund.
(ii)The pleadings, which I took to really mean the allegations of fact made in the Notice of Appeal and the further and better particulars provided on behalf of Mr and Mrs Lund, were so vague, ambiguous and vexatious as to cause unreasonable prejudice to the Department. As argument developed these complaints were more generally referred to under the headings of "want of prosecution" and/or "abuse of process".
(iii)That the Court had no jurisdiction in any event in that the decision sought to be appealed against was not an appealable decision pursuant to Part 3 of the Land Act 1994.
(iv)That there was no real basis for the appeal in that it was concerned with a tree clearing permit that was in effect extinguished.
The execution point
I find no merit in the submissions dealing with this point. There was no evidence led to suggest that the persons who signed the tree clearing applications did not have the necessary authority to act as the agents of both Mr and Mrs Lund. Mr Fisher was not able to point to any requirement under either the Land Act 1994 or any other legislation which required the applications to be signed only by the persons who held the actual interest in the land sought to be cleared. Further, it is abundantly clear from the history of this matter that the Department had, at least up until the commencement of these proceedings, treated the permit applications as being validly made.
Want of prosecution/abuse of process
The original tree clearing application was lodged at or about March 1999. The next application was lodged in May 2002. On 13 April 2004 a conditional tree clearing permit was issued. On 10 May 2004 the appellants sought to have the decision to issue the April 2004 permit reviewed. On 22 December 2005 the decision concerning the review request made in May 2004, together with the associated statement of reasons was addressed to Mr and Mrs Lund. The first Notice of Appeal was filed in this Court on 1 February 2006.
On 21 April 2006 the parties appeared before the President of this Court and agreed to quite comprehensive consent orders addressing matters including requests for further and better particulars, disclosure and the raising of preliminary points of law. All of the orders were designed to facilitate the hearing of the appeal in August this year. Following those orders, amongst other things, the Department on 20 May 2006 sought further and better particulars of the Notice of Appeal as pleaded at that date. I pause here to note that this request ran for just over 12 pages and, according to Mr Cochrane, involved about 140 requests for particularity. On 19 June 2006 the appellants filed in this Court an amended Notice of Appeal and a response to the request for further and better particulars sought by the Department.
Again I can find no merit in the arguments advanced on behalf of the Department. The complaints lacked any particularity. I was not taken to any specific allegations made against the Department in either the Notice of Appeal or the further and better particulars which evidenced the complaints made. Also, despite two affidavits of officers employed by the Department being relied on in support of this application, there was no assertion of any prejudice being suffered by the Department as a consequence of the conduct of this appeal by Mr and Mrs Lund. Further, in my opinion if it is thought that either the grounds of appeal and/or the further and better particulars as provided require further clarification, other remedies exist that are more appropriate than having the appeal struck out. None of the conduct of Mr and Mrs Lund, including the filing of 3 Notices of Appeal up to the present time could, in my opinion, be remotely described as amounting to want of prosecution or abuse of process.
The appealable decision point
This issue really lies at the heart of the application made on behalf of the Department. The argument advanced by Mr Fisher is that Part 3 of the Land Act 1994 effectively provides a code which limits the right of appeal to an appeal against a "review decision" as defined in s.426(1) of that Act. At the crux of Mr Fisher's argument is the proposition that as the conditional tree clearing permit dated 13 April 2004, or at least the decision underlying the issuing of that permit, was not a review decision for the purposes of the Land Act 1994 then no right of appeal lies against it and, accordingly, the latest amended Notice of Appeal is fatally flawed.
On the other hand Mr Cochrane contends that the decision underlying the issuing of the April 2004 conditional permit is the appealable decision.
Sections 426 and 427 of the Land Act provide:
"426 Decision on reconsideration
(1) After reviewing the original decision, the Minister must make a further decision (the "review decision") to confirm the original decision, amend the original decision or substitute a new decision.
(2) The chief executive must immediately give the applicant written notice of the decision.
(3) The notice must state –
(a) the day the notice is given to the applicant (the "review notice day"); and
(b) if the review decision is not the decision sought by the applicant –
(i) the reasons for the decision; and
(ii)that the applicant may appeal against the decision to the court within 42 days after the review notice day.
427 Who may appeal.
A person who has applied for the review of a decision under division 2 and is dissatisfied with the review decision, may appeal to the court against the decision."
According to Mr Fisher the last mentioned "decision" referred to in s.427 should be read to mean "review decision". Mr Cochrane's argument is that that decision is the same decision as that first referred to in s.427. As I understand Mr Cochrane's argument, this would be an "original decision" pursuant to s.422 of the Act.
On balance, I am of the opinion that Mr Fisher's argument is probably correct. That is, the code, if that is the correct description, provided for in Part 3 of the Land Act 1994 provides that it is the "review decision" as defined in s.426 that is appealable. Section 426(3) can, in my opinion, be more sensibly and consistently read with such a conclusion.
However, in circumstances where it is quite clear, as conceded by Mr Fisher in argument, that at the very least the correspondence dated 22 December 2005 (Exhibit MWV16 to the affidavit of Mr Venz – Exhibit 1) would constitute a basis for an appeal pursuant to ss.427 and 428 of the Land Act 1994, I am not prepared, in proceedings such as this, to strike out the appeal. It appears to me that such defects, if any, concerning the relevant appealable decision could be readily rectified by amendment without causing such inconvenience to the Department that it could not, if necessary, be addressed by appropriate costs orders.
The extinguishment point
According to Mr Fisher it is not open for Mr and Mrs Lund to have any regard to their tree clearing application dated 2 March 1999 (Exhibit MWV 1). According to Mr Fisher that is so because that application came to an end, that is it was "extinguished" or, at the very least had "lapsed" because of the events that followed including the requirement for a Tree Management Plan, the later application dated 17 May 2002 (Exhibit MWV 3), the 13 April 2004 conditional tree clearing permit (Exhibit MWV 12) and the decision of the Department dated 22 December 2005 (Exhibit MWV 16). On the other hand Mr Cochrane contends that the appeal really does concern the 1999 application as that application was merely amended by the later application.
On balance I do not consider it necessary for me to decide this debate. In my opinion, even if Mr Fisher was correct, it would not be a reason to justify summarily striking out the appeal.
Conclusions on the striking out application
By reference to the orders and relief sought in the Department's application filed 16 June 2006 and the matters addressed above, I conclude as follows:
(i)the application for orders striking out the appeal for lack of jurisdiction and/or in the alternative for orders striking out the pleadings should be refused.
(ii)the application seeking a declaration that the appeal be limited to the 2002 application for a tree clearing permit and orders requiring the appellant to clearly and precisely identify the basis for the appeal should be refused.
(iii)the application seeking an order limiting litigation (especially interlocutory matters) to the "St Albans" property should be refused. It seems quite clear to me from the documentation and the submissions made by Mr Cochrane during argument that the appeal is in fact limited only to that property.
The Department's application filed 23 June 2006
This application seeks variation or at least reconsideration of the consent orders made by the President on 21 April 2006.
It is not necessary for me to go into this application in any further detail other than to identify that on the hearing of the substantive application I made orders varying only orders 10, 11 and 12 of the consent orders. Those orders should now read:
"10 The parties arrange a mutual inspection of the subject property on or before 14 July 2006;
11There be a conference between the parties and their experts, if they choose, on or before 14 July 2006;
12The experts upon whose evidence the parties intend to rely in each area of expertise exchange short form reports, confer and file and serve a document setting out the areas of agreement and the areas of disagreement and reasons for any disagreement on or before 14 July 2006."
Orders 13 through to 16 inclusive remain unchanged.
ORDERS
1.The application for orders striking out the appeal for lack of jurisdiction and/or in the alternative for orders striking out the pleadings is refused.
2.The application seeking a declaration that the appeal be limited to the 2002 application for a tree clear permit and orders requiring the appellant to clearly and precisely identify the basis for the appeal is refused.
3.The application seeking an order limiting litigation (especially interlocutory matters) to the "St Albans" property is refused.
4.Orders 10, 11 and 12 of the orders of the Court made on 21 April 2006 be varied to read as follows:
"10The parties arrange a mutual inspection of the subject property on or before 14 July 2006;
11There be a conference between the parties and their experts, if they choose, on or before 14 July 2006;
12The experts upon whose evidence the parties intend to rely in each area of expertise exchange short form reports, confer and file and serve a document setting out the areas of agreement and the areas of disagreement and reasons for any disagreement on or before 14 July 2006."
I will hear the parties as to the question of costs.
RS JONES
MEMBER OF THE LAND COURT
0
0
0