Moreton Bay Regional Council v. Dale

[2009] QPEC 70

[2009] QPEC 70

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

MORETON BAY REGIONAL COUNCIL	Applicant
and
WILLIAM JOHN DALE	Respondent

BRISBANE

..DATE 26/06/2009

ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.1.2, s 4.3.24, Schedule 8, Table 4 Item 1A (e) - Council constrained to abandon ex parte application for interim enforcement order forbidding accessible development by clearing without a development permit - such development was contrary to planning scheme, which planning scheme overridden by classification of such development as exempt in Schedule 8

HIS HONOUR:  What's happened yesterday evening and this morning reveals the system operating reasonably well but encountering an insuperable obstacle in the way of anything being achieved in the Court by the Council by way of preserving the operation of its planning scheme in its full integrity.

An urgent application came before the Court which rendered pointless the requirement that the Council file an originating application, one they foreshadowed.

The Court has been asked to consider making an interim enforcement order, in the first instance, under section 4.3.24 of the Integrated Planning Act 1997 (IPA). This was in respect of the destruction of regrowth remnant vegetation on Mr Dale's property which had occurred on or before the 19th of June 2009 when a complaint was made to the Council which its officer, Ms Hilton, investigated.

Further clearing occurred on or before yesterday morning which, once again, Ms Hilton and a colleague investigated following a complaint from a neighbour.

The vegetation is regarded as valuable and worthy of protection under the planning scheme.  It appeared that Mr Dale, who had been issued with an infringement notice after the earlier clearing (and obviously received that notice in the post because he attended the Council premises to complain about it) persisted in his intentions to clear as established by the events relative to yesterday; as to them, Ms Hilton gave evidence of her observations which were supported by photographs.

She was able to describe heavy equipment on the site which was available if further clearing had been intended on the substantial site of 65 hectares or so.

...

HIS HONOUR:  The area of most concern (said to have been the subject of clearing already) is an area mapped, for planning scheme purposes, as being of bio-diversity significance occupying the western sixth or thereabouts of the site.

On the basis of the serious infringement of the planning schemes requirements which had occurred, and other circumstances, the Court was persuaded to proceed ex parte.  Evidence was taken from Ms Hilton who introduced a number of exhibits.  The hearing was not completed as the Council's legal representatives wished to have further time to formulate precisely the terms proposed for the Court's order, and indeed the terms of the foreshadowed originating application and application within it for an interim enforcement order.
There would have been a claim for orders under section 4.3.25 of IPA made in the originating application. 

Further time was also sought to enable the representatives to look into the possibilities that Mr Dale might have been entitled to do what he did by reason of one of one or more of the exemptions in Table 4.32 of the Planning Scheme in respect of vegetation clearing which was made code assessable within a bio-diversity significance area or the 20 metre buffer adjoining such area.

It was going to be necessary to consider provisions of the Vegetation Management Act 1991, provisions to do with forest preserves and the like.

When the matter resumed this morning, Mr Williamson announced to the Court that a fatal obstacle in the way of the Council's intended case, which otherwise might have proceeded to a successful interim outcome, lay in section 3.1.2. of the IPA, and in one of the exemptions set out in Schedule 8, Table 4, Item 1A. The section mentioned makes all development exempt "unless it is assessable development or self-assessable development". See sub-section (1).

Development can be made assessable by various means, including, relevantly, Schedule 8 and local governments' planning schemes.

By sub-section (3), however, "to the extent a planning scheme is inconsistent with Schedule 8 or 9, the planning scheme is of no effect".

The relevant exemption in Item 1A is one where clearing that is otherwise "operational work that is the clearing of native vegetation on free hold land" applies "(e) in an area shown on the property map of assessable vegetation, as a category 'X' area".

Exhibit 13 tendered this morning is the relevant property map which shows the site, which is at 145 Old Toorbul Point Road, Caboolture, as Category 'X'.  On the reverse side of Exhibit 13 is a "Moratorium" map which shows Mr Dales' site coloured dark blue to indicate it is a "moratorium regrowth vegetation area".  That may or may not have something to do with Mr Dale's assertions to the Council through the week that his clearing was permissible under the moratorium.  That view in fact was communicated in his letter of 29th May, 2009, withdrawing an application to the Council for approval to clear vegetation made a month before and seeking return of the application fees.  Those recent circumstances were ones the Council had relied on yesterday as tending to show that Mr Dale may have been intent on clearing without an authority that he appreciated he should get and as justification for proceeding ex parte.

The section 3.1.2. aspect, however, is enough to require Mr Williamson, on behalf of the Council, to abandon further pursuit of this matter. It brings some credit on all concerned, in my opinion, that this urgent matter was able to be entertained to the extent that it was, and that the fatal flaw which amounts to State arrangements overriding those desired by the Council as part of its Planning Scheme has been discovered in time - before an order was made which then would have to have been set aside in a further proceeding.

So it is not necessary for the Court to make any other order.  I will have to liaise with the Registrar to ascertain what to do with the exhibits that the Court remains in possession of.  A number of the exhibits having been returned to the solicitors overnight for copying.  It's probably appropriate to order that all the exhibits be returned.  I would say that that is only likely to change if the Registrar is anxious to open a new file to get the Court's statistics in order, but I don't think that will happen.

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