Maroochy Shire Council v Barnes
[2001] QPEC 31
•2/05/2001
PLANNING AND ENVIRONMENT COURT OF
QUEENSLAND
CITATION: Maroochy Shire Council v. Barns [2001] QPE 031 PARTIES:
MAROOCHY SHIRE COUNCIL (Applicant) and
JAMES BARNS (Respondent) FILE NO/S: Appeal No. 32 of 2000 DIVISION: Planning and Environment Court DELIVERED ON: 2 May 2001 DELIVERED AT: Maroochydore HEARING DATE: 30 November – 1 December 2000, 8 – 12 January
and 6 March 2001JUDGE: K S Dodds DCJ ORDER: An appropriate restraining order and/or remediation order will
be made. Matter adjourned for further submissions.CATCHWORDS: ENVIRONMENT PROTECTION – OFFENCES – applcn to
remedy/restrain development offence – resp harvested timber
despite a vegetation protection order – wh harvesting constituted a
“material change of use” – wh “material environmental harm” doneCases cited:
Norman v. Gosford Shire Council (1975) 132 CLR 83
Herston Kelvin Grove Residents Action Group Inc v. Brisbane City
Council & Ors, P&E Court Brisbane 9/3/01, Newton DCJ
Martin & Ors v. Whitsunday Shire Council & Ors, P&E Court
Townsville 7/3/01, Wall QC, DCJ
Shire of Perth v. O’Keefe (1963) 110 CLR 529
ACR Trading North Sydney Municipal Council v. Boyts Radio &
Electrical Pty Ltd (1989) 16 NSWLR 50Statutes judicially considered:
Environmental Protection Act 1994
Integrated Planning Act 1997COUNSEL: J Batch and E Morzone for the applicant
S M Ure for the respondentSOLICITORS: Heiner & Doyle Solicitors for the applicant
Butler McDermott & Egan for the respondent
These are proceedings for:
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| [2] | The issues in the application appear in Exhibit 41, the applicant’s document setting out the issues to be relied upon by the applicant. |
On 11 October 2000, in the Planning and Environment Court (the Court) in Maroochydore, an interim restraining order was made under section 195 of EPA. Thereafter an application was made by the respondent to discharge the interim order. The application was refused on 26 October 2000. The matter then proceeded to a full trial occupying in all eight days.
The respondent and his wife are the owners of an irregularly shaped block of land located at Monak Road, Murdering Creek Road, the Sunshine Motorway and Lakewood Drive, Weyba Downs in Maroochy Shire. The real property description is Lot 31 on RP858565, Parish of Weyba, County of March. It has an area of 154.9 hectares (the land). It is severed by the Sunshine Motorway. The respondent and his wife purchased it in 1975.
In early September 2000, an environment officer employed by the applicant, one McDonald was given information about timber cutting upon the land. On 13 September 2000, he spoke to the person doing the cutting, Paul Griggs (Griggs). Griggs informed him he had been directed by the respondent to take all timber off which was commercially viable including saw logs, posts and split posts with stumps to be grubbed following felling.
McDonald recommended to the applicant that a vegetation protection order pursuant to the applicant’s local law number 19 (protection of vegetation) be declared over the land. This was done on or about 14 September 2000 and the order was served upon the respondent. It appears that cutting then ceased for a time. However, about 10 October 2000 McDonald became aware that cutting had recommenced on the land despite the vegetation protection order. He went to the land on 10 October where he saw Griggs and eventually the respondent. By that time about 6.5 hectares of the land had all timber judged to be commercially viable, cut. This was in the northeastern most part of the land on the eastern side of the Motorway. McDonald considered what was occurring was “akin to a clear felling operation”. The respondent would not answer any questions for McDonald saying that all inquiries were to be directed to his solicitor. McDonald considered that all trees of a diameter greater than about 20 centimetres were being felled and significant damage was being done to the understorey vegetation.
In recent years it is evident the use of native forests for timber product has been receiving increasing attention of governments. It comes as no surprise that many landowners are apprehensive and/or resentful of regulation or restriction of this use of their land.
It is apparent as will appear later that the 1996 Strategic Plan of the applicant, and more recently its Maroochy Plan 2000 have potentially restricted the use of the land for more intensive development. The land is part of a larger area of land broadly regarded as environmentally significant although the mixed eucalypt forest part of it in itself has no special significance as rare or endangered.
The significance of what has gone on in the past with respect to the use of native forests on private land for timber product is historical. It may bear upon continuing lawful uses and upon the expressions of opinion of witnesses who have worked in or about the timber industry for many years but that is all.
The EPA
| [10] | Under section 194 of EPA the court has jurisdiction to make an order restraining an offence or a threatened or anticipated offence against EPA. |
For the purposes of this matter, unlawfully doing serious or material environmental harm is an offence against the Act. Wilfully and unlawfully doing either of those sorts of harm is a more serious offence against EPA: sections 120 and 121.
To make an order such as that sought the Court must be satisfied that an offence against EPA has been committed or will be committed unless restrained: section 194(5). Sections 194(6) - (9) further define the Court’s powers.
Environmental harm is widely defined in EPA. For the purpose of this proceeding it is an actual or potential adverse effect (whether temporary or permanent and of whatever magnitude, duration or frequency) on an environmental value: section 14(1). It may be caused by an activity whether the harm is a direct or indirect result of the activity or whether it results from the activity alone or from the combined effects of the activity and other activity or factors: section 14(2).
[14] ‘Environment’ and ‘environmental value’ are defined in sections 8 and 9
respectively. An environmental value is a quality or physical characteristic of the
environment, ie. of:
· an eco system or its constituent parts including people and communities; or · any natural or physical resource; or · locations, places and areas that contribute to:
Ø their biological diversity and integrity,
Ø their intrinsic or attributed scientific value or interest; Ø their amenity; Ø their harmony; Ø their sense of community;
that is conducive to ecological health or public amenity or safety.
‘Material environmental harm’ is environmental harm that is not trivial or negligible in nature, extent or context or the effect of which causes, or has the potential to cause actual loss or remediation costs to an amount greater than $5000 but less than $50000: section 16. ‘Serious environmental harm’ is harm of a more serious nature than material environmental harm: section 17.
Section 119 establishes what is and is not unlawful environmental harm. It provides that an Act which causes serious or material environmental harm is unlawful unless it is authorised to be done under any of the ways therein set out. One of the authorised ways is under a development condition of a development approval under IPA. The section goes on to provide in substance that it is a defence to a charge of unlawfully causing environmental harm to prove that the harm happened while an activity (that is lawful apart from EPA) was being carried out and the defendant complied with the general environmental duty, either by complying with the relevant code of practice (if any) or in some other way.
As to the general environmental duty, section 36 provides that a person must not carry out any activity that causes or is likely to cause environmental harm unless the person takes all reasonable and practicable measures to prevent or minimise the harm.
It follows that an activity which causes serious or material environmental harm does not constitute an offence of unlawfully causing that harm provided the activity was otherwise lawful and the person engaged in the activity took all reasonable and practicable measures to prevent or minimise the harm.
The IPA
IPA commenced on 30 March 1998.
The respondent’s land is in the applicant’s local government area. Its planning scheme, Maroochy 2000 applies: section 2.1.2. It is an IPA planning scheme. It commenced on 1 June 2000.
Under IPA, starting assessable development without a development permit for it is a development offence: section 4.3.1 and Schedule 10. The Planning and Environment Court may make an enforcement order under IPA to remedy or restrain a development offence: sections 4.3.22, 4.3.25, 4.3.26, and 4.3.27.
| [22] | Under IPA, making a material change of use of premises (premises includes land, see dictionary) is development. So is carrying out operational work: section 1.3.2. |
Making a material change of use of premises means any of; the start of a new use of the premises, the re-establishment on the premises of a use that has been abandoned or a material change in the intensity or scale of the use of premises: section 1.3.5.
Under Chapter 1, Part 4, Division 1 of IPA, any lawful use of land prior to IPA or prior to Maroochy 2000 or any amendment thereof, remains a lawful use to the same extent: sections 1.4.1 and 1.4.6. Provided there has been no material change of use since the commencement, Maroochy Plan 2000 cannot stop the use continuing or require it to be changed or further regulated. It can only stop or regulate it or require it to be changed if there has been a material change of use.
Planning History of the Land
The land was zoned rural A under the applicant’s 1976 planning scheme. In that zone forestry, defined inter alia as land used or intended to be used for the planting, growing and harvesting of trees as a commercial venture was a permitted purpose.
The 1976 scheme was replaced by the 1985 planning scheme. Under that scheme the land was included in the rural A zone. Forestry, similarly defined, required town planning consent in the zone. However existing lawful uses under the 1976 scheme were protected as existing lawful fettered uses which could continue but could not be added to or in any way extended or changed to another use (Part IV of the 1985 scheme).
The 1985 Strategic Plan included the land partly in the urban designation and partly in the rural designation. When the 1996 Strategic Plan of the applicant was gazetted, the land was included in Rural or Valued Habitat, Conservation and Agricultural Protection designations. In March 1998, the respondent made a large claim for compensation based on the 1996 Strategic Plan designations. In April 1998, the applicant resolved to amend the designations to include the land partly in the urban designation, partly in the Rural or Valued Habitat designation and partly in the Conservation designation. In June 1998, the respondent lodged an appeal against the proposed Rural or Valued Habitat designation but it was not proceeded with. In October 1998, the applicant again resolved to proceed with the amendment to the Strategic Plan and in November 1998, the amendment was forwarded to the relevant state government department. Meetings were held in 1999 between the respondent, the applicant and the department in relation to the proposed designations. Following that a report on ecological values was prepared by experts agreed upon by the applicant and the respondent, Mr Rodney Carter (Carter) and Mr Thomas (Thomas).
Maroochy Plan 2000 replaced the 1985 planning scheme and the 1996 Strategic Plan of the applicant. The draft Maroochy Plan 2000 was publicly notified in July 1999. In its strategic plan it included the land in similar designations to those in the 1996 Strategic Plan. It is part of Precinct 5, Northern Coastal Lowlands, Planning Area No.25 – Northern Coastal Plains, Precinct Class General Rural Lands. It also included the land in a comprehensive assessment special management area (vegetation management).
If there has been a material change of use then the changed use is assessable development under Maroochy Plan 2000 and with its inclusion in a comprehensive assessment special management area (vegetation management) it may be impact assessable: section 4.8 of Maroochy Plan 2000.
The Evidence
The evidence was quite extensive. In the applicant’s case evidence was given by Leslie Hawkes (Hawkes), a forestry expert, Sandra Vigar, a town planning expert and McDonald, an ecologist employed by the applicant as an environmental officer. In the respondent’s case: the respondent, a number of saw millers, Mark Enright of Enright’s Saw Mill at Beaudesert, Gerald Davidson and John Davidson of Davidson’s Saw Mill at North Arm, Griggs the timber cutter who was cutting on the respondent’s land when the applicant issued the vegetation protection order in September 2000, Bradley Grigor, a logging contractor with whom the respondent had contracted to cut the timber, Glenn Ingram (Ingram), a zoologist and environmental consultant, Carter, a forester and ecologist, Chris Schomburgh, a town planning expert, Ross Rickard (Rickard), who said he helped the respondent plant seedlings on the land in April 1994 and April 1995 and Ian Mott (Mott) a man who claimed forestry expertise. Mott appears to be an active lobbyist in the sphere of privately owned native forests for timber production.
I accept the evidence of Hawkes. He undertook a thorough investigation. I am satisfied he was well qualified as an expert forester. Except to the extent he was pressed to do otherwise, he was careful to restrict his opinions to his area of expertise. I consider he was also careful to remain objective and non-partisan in his evidence. His evidence was criticised because it was said he lacked experience in privately owned forestry. I do not accept the criticism detracts from the force of his evidence.
I do not accept the evidence of Mott as an expert forester. Although I received Mott’s opinions in matters of forestry I do not consider he qualified as an expert. I do not doubt he has a background including timber growing and sawmilling and is genuinely committed to his cause which appears to be the advancement of the interests of private landowners growing native trees for use as timber product. Where his evidence conflicts with that of Hawke, I will rely upon Hawke’s evidence.
Carter, another expert in forestry gave evidence in the respondent’s case. He was a co-author of the Carter Thomas Report prepared for the purpose of altering the 1996 Strategic Plan designations of the respondent’s land which impacted on its potential for development. Carter was said to have advised the respondent to “hit” the land harder if maximisation of blackbutt regeneration was desired, a reference to a more intensive cutting of timber than had occurred in the past to open up the canopy to better promote regeneration. Carter did not prepare a further written report for the purposes of the case although he did visit the land in recent times. I prefer Hawkes expert forestry evidence to Carter’s in areas where their evidence conflicts.
The respondent’s land displays evidence that timber has been cut from it over a long time. When the respondent purchased it in 1975, it was part of a larger holding of land which had been used for grazing. I do not accept the respondent’s evidence about the extent to which it was then cleared. Rather I find it was fairly well timbered with mixed eucalypt. For a couple of years after purchase cattle continued to run on the land. After that it was held as a timbered block. Some thinning of regrowth was done in 1977/78 to allow for timber growth. In 1982, the respondent commenced to clear timber from some of it for cane growing. However sugar prices dropped and it was not proceeded with. According to the respondent, from time to time since its purchase, timber has been harvested from the land for sale by the respondent. Mr Len Hall cut timber from it from time to time commencing in about 1978. There are no financial records in support of these activities which were a long time ago. In 1996/97 Olsen’s mill harvested blackbutt and it was intended also to harvest timber for batons, palings and posts. A vegetation protection order was issued by the respondent during that process and the cutting ceased although the respondent agreed during evidence that he considered that the harvesting he was engaged in was lawful despite the vegetation protection order because he considered it was sustainable harvesting of timber by or on behalf of a farm forester under section 29(h) of the applicant’s local law number 19 (protection of vegetation).
The evidence before me indicates that the cutting commenced by Griggs in 2000 was far heavier than any that had occurred on any earlier occasion. In saying that I am accepting that it was intended to maintain a buffer zone around the area cut. It was not a clear fell in the sense that may occur if land is being cleared for a plantation. It was a clean out of all commercial trees. Everything which may have a commercial value was being cut. The evidence indicates it was about twice as heavy as any logging that had occurred on earlier occasions on the land. Whilst I can understand a need to take out some of the bloodwood because of its preponderance, it included a significant amount of the remaining blackbutt. It did not retain prime species of blackbutt to provide an ongoing forest asset and a source of seed for regeneration which I find might have been expected if an important objective was to allow the forest to reestablish a silvicultural balance. The blackbutt was taken, I think, because of its higher value and was consistent with the intention to cut and take all timber with a commercial value to obtain the maximum financial return. Moreover the felling had been done in such a way that logs were criss-crossed on the ground. There was the inevitable damage caused to smaller vegetation from the felling. There was the likelihood further damage to vegetation would occur during snigging which may have been reduced if trees had been fallen in a more consistent direction. It was claimed that the method of falling was designed to put tree heads into open areas to provide optimum seed dispersal. That may be partly correct. However I accept Hawkes evidence that this could have been achieved without the criss-cross of logs which occurred.
There is no dispute between the parties that harvesting pre-2000 had concentrated on blackbutt, the most valuable timber species. The term of art is “high grading”. This had left a higher proportion of bloodwood, a less valuable species, and other types than would ordinarily be the case in a native mixed eucalypt forest in this location. Blackbutt regeneration after the more recent cuttings appeared to be poor to non-existent. From a forester’s perspective, silvicultural intervention was needed to restore blackbutt to the forest if the aim was to maximise its productivity as a source of valuable timber. The evidence in the respondent’s case was that there was to be a clean out of all commercial timber which appears to have included the remaining prime blackbutt in the larger sizes, except for those which were commercially useless. It was said an intention was thereby to create disturbance and open spaces which would provide sunlight needed for blackbutt growth. It was intended then to rely upon natural regeneration and planting to restore the forest.
Hawkes however, said that the forest should have been logged at a considerable lesser intensity retaining blackbutt in the vigorous growth size as seed trees and an ongoing forest asset. From a forester’s perspective he also favoured silvicultural intervention to assist in regeneration of blackbutt.
Discussion
There are a couple of matters that emerged in the evidence which occupied some time. They are of no particular relevance except as to credibility. They were as follows:
(a) I was shown and there was evidence from the respondent about the clearing of part of the land for an Optus tower and power access to it. It was an area of clear felling in the fullest sense of that phrase. On 31 May 2000, a development permit for building works was issued by a private certifier for the construction of an Optus communications tower on the land. The tower was approved under the 1985 planning scheme (a transitional scheme under IPA) wherein public utilities were permitted uses which required only building approval. Construction of the tower required an area of vegetation to the east of it to be cleared for the provision of power. The area required to be cleared was a 14 metre wide strip leading to the tower. In fact a strip of more than twice that width was cleared. I accept McDonald’s evidence about a meeting on site with the respondent and representatives of the contractor on 21 August after the clearing had occurred. The much wider clearing which was done appears to have had the approval if not the encouragement of the respondent. I infer that the respondent at that time intended to commence his logging of the land and was content to maximise his return from timber which was cut during the clearing. (b) The evidence of Rickard was to support that of the respondent that large numbers of seedlings mainly blackbutt were planted on the land in April 1994 and April 1995. There is no observable evidence of the plantings at the present time but a fire may have been through the land since the planting. It is apparent from the evidence of the respondent that planting of seedlings was at least partly done to qualify for primary industry status for land tax exemption. It appears to have been done after exemption was denied in 1993 if the landowner merely allowed native timber to grow in a native forest.
The harvesting of a native forest for timber product means it can only be an intermittent activity dependent at any point in time upon an interrelationship between the stage of growth of trees, the type of trees, the market which exists for particular timber and commercial realities.
By and large the use the respondent has made of the land since he purchased it, has been to allow timber to grow on it and from time to time have some of the timber harvested for a financial return, ie. to use the land for forestry as that term was used in the 1976 planning scheme. A continuation of a use of land for forestry as opposed to abandonment of the use depends on the nature of the use and on questions of degree. Putting to one side the 2000 cutting, the evidence here does not support any view other than the respondent has continued to use the land for forestry, that is to allow the timber on it to grow and to harvest some from time to time for commercial gain rather than some other use. On the evidence I have heard and seen I find that until some other more valuable use became feasible the respondent, after he bought the land, intended to hold it as a timbered block and from time to time, when it was commercially viable have timber harvested from it.
The respondent is presently entitled to continue to use the land for forestry as that term was used in the 1976 and 1985 schemes, ie. to plant, grow and harvest trees as a commercial venture so long as his activities in that regard do not amount to a material change of use of the land. In particular so long as his use of the land for forestry does not involve a material change in the intensity or scale of the use, the use may lawfully continue.
A central question then is; did the harvesting of timber which commenced in September 2000 and was intended to continue until all commercially viable timber on the land was cut, amount to a material change of use?
Material Change of Use
In IPA a material change of use in the context of this matter is a material change in the intensity of the use of the land for forestry, ie. the planting, growing or harvesting of trees as a commercial venture or a material change in the scale of the use of the land for forestry, ie. the planting, growing or harvesting of trees as a commercial venture.
As appears from Norman v. Gosford Shire Council (1975) 132 CLR 83, an expansion of the scale or intensity of a use was held not to alter the nature of the use.
IPA provided for a material change in the intensity or scale of a use to amount to a material change of use. Whilst providing for the continuity of existing lawful uses IPA evidently intended to include a material change in the scale or intensity of a use as triggering a requirement for assessment of the changed use under IPA.
The other descriptions of a material change of use are the start of a new use of premises and the reestablishment of a use that has been abandoned. The description in question contemplates the same use intensified in a material way or the scale of which has changed in a material way.
The use of “material” to describe when change in the intensity or scale of a use, will amount to a material change of use, appears to involve a question of fact and degree. See also Herston Kelvin Grove Residents Action Group Inc v. Brisbane City Council & Ors, P&E Court Brisbane 9/3/01, Newton DCJ; Martin & Ors v. Whitsunday Shire Council & Ors, P&E Court Townsville 7/3/01, Wall QC, DCJ. Not any change in the scale or intensity of a use will do. It must be a material change and I think the materiality must be informed from IPA and relevant planning instruments.
The defendant submitted it could not be concluded that a more intensive harvesting of trees than had previously occurred as an incident of forestry involved a material change in the intensity or scale of the use. It submitted that if that were correct, on land where trees had been growing as a commercial venture for say, 20 years, and harvesting of some trees took place for the first time there would then inevitably be a material change in the intensity or scale of use. The use was not just the harvesting of trees. It was forestry which was the planting, growing or harvesting of trees as a commercial venture.
It is recognised that in determining an existing use it should be construed broadly. In Shire of Perth v. O’Keefe (1963) 110 CLR 529 Kitto J at 535 said in considering whether there is a continuing use, “first it is required that a purpose be identified as the end for which it can be seen that premises are being used… not that the precise manner of use for that purpose may alone continue but that the use generally may continue.” He said that question is answered “by asking what according to ordinary terminology is the appropriate designation of the purpose being served by the use of the premises at the material date”. See also Kirby P in ACR Trading North Sydney Municipal Council v. Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 at 59.
The issue is a continuing lawful use or a material change of use. In the latter case, the provisions of IPA including its description of forestry will apply to the assessment of the use. In determining whether a use is continuing or whether there has been a material change in its intensity or its scale the focus is upon the general purpose of the use, here, to grow or harvest native timber as a commercial venture. The growing and the harvesting are aspects of the use. The only way to determine whether there has been a material change in the intensity or scale of use is to examine and compare those aspects of the use before the alleged change and comprising the alleged change.
The fact, if it be the case, that timber had never before been harvested on land used for forestry as I have been using that term will mean that when it is, the use will involve a material change in the intensity or scale of the use and it will be assessable development. That will not necessarily mean that harvesting may not occur rather that a development permit may include conditions. I do not think there is anything remarkable in that. IPA has provided what are lawful uses which may continue and not be affected by IPA. Excluded are preexisting lawful uses which undergo a material change in intensity or scale.
I find that the 2000 harvesting which had commenced, and was intended to continue at the same intensity, involved a material change in the intensity and scale of the use of the land, that is of the growing and harvesting of trees as a commercial venture. That is a material change of use of the land for forestry. In that event absent any exemption the harvesting of timber that was occurring and was intended to continue is assessable development under IPA. To engage in it without a development permit was a development offence.
It also means that if material environmental harm has been done, it has been unlawfully done. There is ample evidence in the evidence of McDonald supported by some of the evidence of Dr Ingram that material environmental harm has been done. It was not authorised to be done as it might have been under a development approval under IPA. It was not done while an activity that was lawful apart from EPA was being carried out. As to the general environmental duty it seems to me that absent a relevant code of practice, what are reasonable and practicable measures must have regard to the legitimate purpose of the activity which is authorised or is otherwise lawful. If it were the case that the cutting that was occurring amounted to a continuing lawful use of the land for forestry as discussed, then the only aspects of activity which may amount to a failure to take all reasonable and practicable measures to prevent or minimise environmental harm is the felling of trees in an unnecessarily criss-cross manner thereby failing to minimise unnecessary damage to smaller vegetation and the evident intention to not leave sufficient habitat and recruitment time for wildlife.
The outcome will be that an appropriate restraining order and/or remediation order will be made. It has been suggested that if that is the outcome, the parties may be able to settle an order. I will adjourn the matter for further submissions.
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