Wall v Doyle

[2008] QPEC 23

[2008] QPEC 23

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Application No 253 of 2008

TERRY WALL

Applicant

and

STEVEN JAMES DOYLE

and

BRANDIE-LEE JONES

First Respondent

Second Respondent

BRISBANE

..DATE 19/02/2008

ORDER

CATCHWORDS: Nature Conservation Act 1992 s 89, s 173F, s 173I and 173J - enforcement orders (by consent) requiring the replanting of 5 hectares of swamp tea tree (or bush house
paperbark) being "rare wildlife" felled or "taken" without authority - order to bind the land

HIS HONOUR:  The Court makes an order to which the respondents, by their solicitor, Mr Purcell, consent in the following terms:

"UPON THE COURT BEING SATISFIED THAT a nominated offence under the Nature Conservation Act 1992 (the “Act”) has been committed in respect of the taking of a protected plant under the Act, namely Melaleuca irbyana, contrary to Section 89 of the Act, on land properly described as Lot 12 on SP 160439, County of Churchill, Parish of Mutdapilly, located at 840-876 Rosewood Warrill View Road, Lower Mount Walker, in the State of Queensland,

IT IS ORDERED THAT:

Interpretation of the Final Enforcement Orders:

1. For the purposes of these final enforcement orders:

(a)"the Respondents" means the First Respondent and the Second Respondent;

(b)"the Land" means Lot 12 on SP 160439, County of Churchill, Parish of Mutdapilly, located at 840-876 Rosewood Warrill View Road, Lower Mount Walker, in the State of Queensland;

(c)"Annexure A" means the drawing marked 'Annexure A' and annexed hereto;

(d)"the cleared area" means that part of the Land shown as "stock-proof fenced area" on Annexure A;

(e)"authorised person" means an "authorised person" as defined in the Schedule to the Act;

(f)"low impact control methods" means:

(i)hand removal;

(ii)spot spraying with non-residual herbicides (for example, glyphosate 360);

(iii)mulching; and/or

(iv)application of weed matting;

(g)"regrowth vegetation" means native vegetation naturally regenerating from seed or root stock within the cleared area;

(h)"replanted vegetation" means native vegetation to be replanted by the Respondents under the final enforcement orders, including any subsequent replacement replanting;

(i)"domestic stock" means farm animals or livestock bred or kept on the Land; and

(j)"compliance period" means the earlier of the following:

(i)15 years from the date of the making of the enforcement orders; or

(ii)until the Applicant is satisfied, and has provided written notice, that the regrowth vegetation and the replanted vegetation meet the following requirements –

§have an average predominant canopy height of 3 metres;

§have an average predominant canopy cover of 50 per cent; and

§are composed of one or a combination of the species listed in paragraph 7(b).

Final Enforcement Orders:

Exclusion of domestic stock

1. Until further order, the Respondents desist from clearing, or otherwise interfering in any way with, the regrowth vegetation and the replanted vegetation.

1. For the duration of the compliance period or until further order, the Respondents must exclude domestic stock from the cleared area.

1. If the Respondents exclude domestic stock from the cleared area by fencing, the following criteria must be met:

   (a)the fencing must be constructed within two months of the making of the order and in way that protects the regrowth vegetation and replanted vegetation from trampling, compaction and grazing by domestic stock;

   (b)at least one three metre-wide gate must be built into a corner of the fencing to facilitate access to and from the cleared area, including the removal of any domestic stock from the cleared area;

   (c)a differential global positioning system must be used to determine the location of the fencing; and

   (d)the fencing is to be maintained in good repair until the determination of this Application or until further order.

1. For the duration of the compliance period or until further order, the Respondents shall cause domestic stock to be removed from the cleared area as soon as practicable after the Respondents become aware of the presence of such domestic stock in the cleared area.

Initial replanting

1. Within 12 months of the making of the order, the Respondents must restore the cleared area with vegetation of a type and an extent similar to the cleared area’s previously vegetated state by planting seedlings in accordance with the following requirements:

(a)planting must occur in spring or summer after a rainfall event of at least 25 millimetres of rain within 24 hours;

(b)seedlings must be local provenances of the species listed in paragraph 7(b) of this Order;

(c)at least 75 per cent of seedlings must be Melaleuca irbyana;

(d)seedlings must be planted five metres apart; and

(e)seedlings must be protected by tree-guards or stakes.  

Regrowth Vegetation and Replanted Vegetation

1. Upon the giving of prior notice (which notice may be given immediately prior to entry), the Applicant, by servants, agents or other persons called to the Applicant’s assistance, may enter the cleared area of the Land at any time during the compliance period for the purpose of:

(a)ensuring compliance with the final enforcement orders;

(b)evaluating any regrowth vegetation or replanted vegetation of the following species:

(i)     Melaleuca irbyana (Swamp tea-tree);

(ii)   Eucalyptus tereticornis (Forest red gum);

(iii)  Eucalyptus crebra (Narrow leaved ironbark);

(iv)Eucalyptus melanophloia (Silver leaved

ironbark);

(v)   Corymbia tessellaris (Moreton Bay ash); and

(vi)  Eucalyptus moluccana (Grey box);

(c)marking any identified regrowth vegetation or replanted vegetation; or

(d)marking any locations in the cleared area where planting is required to comply with paragraph 6, replace regrowth vegetation that has perished, or replace replanted vegetation that has perished.

1. Within one month of receipt of a written notice from the Applicant, the Respondents must cause stakes or tree-guards to be placed around all individual plants of regrowth vegetation or replanted vegetation identified and marked pursuant to paragraph 7(c).

1. Within 15 months of receipt of a written notice from the Applicant, the Respondents must cause any locations marked pursuant to paragraph 7(d) to be planted with seedlings in accordance with the following requirements:

(a)planting must occur in spring or summer after a rainfall event of at least 25 millimetres of rain within 24 hours;

(b)seedlings must be local provenances of the species listed in paragraph 7(b) of this Order;

(c)at least 75 per cent of seedlings must be Melaleuca irbyana;

(d)seedlings must be planted five metres apart; and

(e)seedlings must be protected by tree-guards or stakes.

Weed management

10.The Respondents cause an area of at least one metre radius around all regrowth vegetation and replanted vegetation to be kept free from exotic plant species or native pasture grass species using low impact control methods for five years from the making of the order.

11.For the compliance period, the Respondents cause the cleared area to be kept free of:

(a)Class 1 pest plant species;

(b)Class 2 pest plant species; and

(c)Class 3 pest plant species;

as prescribed in the Land Protection (Pest and Stock Route Management) Regulation 2003, by using low impact control methods.

Overland water flow

12.For the compliance period, the Respondents prevent:

(a)the creation of any barriers to the existing flow of water to, or over, the cleared area; and

(b)the construction of any drains in, or around the cleared area, that would increase drainage from the cleared area.

Soil disturbance

13.For the compliance period, the Respondents prevent soil disturbance from occurring in the cleared area, other than soil disturbance from activities required by the final enforcement orders.

Fire management

14.For the compliance period, the Respondents:

(a)must only start a fire in the cleared area or within 50 metres of the cleared area with prior written approval by the Applicant and in accordance with any conditions stipulated in that approval; and

(b)must take all reasonable steps to extinguish any fire that is in the cleared area, within 50 metres of the cleared area or approaching the cleared area.

Reporting

15.Within three (3) months of the making of the order, the Respondents provide a written report to the Applicant setting out:

(a)a description of the activities carried out in the three month period in accordance with the final enforcement orders;

(b)photographs of the cleared area taken from points A, B, F, H and I shown on Annexure A that show the activities carried out in accordance with the final enforcement orders and the condition of the regrowth vegetation and the replanted vegetation; and

(c)details of any changes in the condition, nature or extent of the vegetation in the cleared area in the three month period.

16.The Respondents photograph the cleared area from points A, B, F, H and I shown on Annexure A every three months for a period of three years from the making of the order.

17.By the end of each of the financial years 2009, 2010 and 2011, the Respondents provide the Applicant with a written report setting out:

(a)a description of the activities carried out in the previous year in accordance with the final enforcement orders;

(b)all photographs taken in the previous year in accordance with the final enforcement orders;

(c)the survival rate of the regrowth vegetation and the replanted vegetation over the previous year;

(d)monthly rainfall records for the Land for the previous year; and

(e)details of any changes in the condition, nature or extent of the vegetation in the cleared area in the previous year.

18.Section 173I of the Nature Conservation Act 1992 applies to the Land.

19.Each party have liberty to apply to set aside or vary the final enforcement orders upon five (5) business days’ written notice."

In fairness to the respondents the Court records information from Mr Purcell that they are a young couple, naïve in respect of matters dealt with by the Nature Conservation Act who purchased the property described with a view to establishing there a home for themselves and also certain facilities to permit them to pursue an interest in trotting.

They inquired of the Local Authority when they were interested in purchasing whether there was on the land any protected vegetation on more than one occasion and were informed in the negative but, as I understand it, with an intimation that they ought to conduct further searches.  Mr Purcell's firm, when brought into the matter, after his clients, as they admit, had cleared some five hectares in about March 2007 was successful after a couple of hours effort in discovering relevant mapping which revealed on lot 12 a "swamp tea tree" community.

The common name one finds in schedule 4 of the Nature Conservation (Wildlife) Regulation 2006 of "bush house paperbark" listed against the scientific name, Melaleuca irbyana, may be describing some particular prominent member of the community.

...

HIS HONOUR: The listing comes in Schedule 4 in part 2, "Plants that are rare wildlife". I have the advantage of having recently considered, but in the context of fauna protection under section 88 of the Nature Conservation Act 1992 in Booth -v- Frippery Pty Ltd [2007] QPEC 99, the making of enforcement orders under 173F of the Act which has, at all material times, been in the same form. Like other presently relevant provisions, it depends on the Court's satisfaction that a "nominated offence" has been committed, that being the situation relied on here rather than a threat of an offence being committed unless the enforcement order is made.

The requisite offence arises under section 89 of the Act which provides:

(1)subject to section 93, a person, other than an authorised person, must not take a protected plant, other than under:

(a)a conservation plan applicable to the plant; or

(b)a licence, permit or other authority issued or given under a regulation; or

(c)an exemption under a regulation.

Maximum penalty - 3,000 penalty units or two years' imprisonment.

(2)subsection (1) does not apply to the taking of protected plants in a protected area;

(3)it is defence to a charge of taking of protected plant in contravention of subsection (1) to prove that -

(a)the taking happened in the course of lawful activity that was not directed towards the taking; and

(b)the taking could not have been reasonably avoided;

(4)a person must not use or keep a protected plant that has been taken in contravention of subsection (1).

Maximum penalty - 3,000 penalty units or two years' imprisonment;

(5)in this section -

protected plant means a protected plant that -

(a)is prescribed under this Act as threatened, rare or near threatened wildlife; and

(b)is in the wild.

The introductory words of subsection (1) offer two bases for immunity, paragraphs (a), (b) and (c) a further three possible bases and subsection (2) another.  None of them applies here.  Mr Purcell says his clients accept that they committed the offence.  The terms of the order set out above make it clear that the applicant is after restoration of the vegetation on the site.

Mr Skoien, appearing for him, tells me that the comprehensive order is not based any precedent in the Court rather is the result of a considerable amount of work and thought given to getting many eventualities covered. Also that it is based on compliance orders which the Department of Natural Resources is likely to be issuing in the course of carrying out its statutory mandate for the purposes of the Act.

The order will impose obligations not only on the respondents, but since, as contemplated in section 173I(1)(c) "the order states that this section applies to the land", it will, in appropriate circumstances, be taken to have been made against future transferees in the ordinary case.

The expectation is that the order will be registered against the land under section 173J.

While in the ordinary course of things a person wishing to undertake clearing within the purview of the Act may be entitled to seek relevant permission or authority administratively (in particular to come within one of the six exceptions referred to), that possibility, it seems, will not apply in respect of lot 12 as the responsibility for such matters has now been referred to and taken by the Court.

What orders are appropriate in this context is a matter for judgment of the Court, which has a statutory discretion to exercise.  The plainly onerous orders indicated have been made on the basis of the respondents' consent; they would not necessarily have been the same in aspects the subject of contest.

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