Windshuttle v Redland Shire Council

DISTRICT COURT OF QUEENSLAND

CITATION:

Windshuttle v Redland Shire Council [2006] QDC 393

PARTIES:

LARRY JOHN WINDSHUTTLE

Appellant

and

REDLAND SHIRE COUNCIL

Respondent

FILE NO/S:

No BD4149 of 2005

DIVISION:

Appellate

PROCEEDING:

ORIGINATING COURT:

Brisbane

DELIVERED ON:

1 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2006

JUDGE:

Samios DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

Local Government – Offences – Local Law – protected vegetation – conviction for damaging protected vegetation – penalty

Criminal Code s 22(2), s 31 (1)(b)

Local Law No. 6 (Redland Shire Council)

Anderson v Nystrom (1941) St R Qd 56 at 69

Ostrowoski v Palmer (2004) 218 CLR 493

R v Taib CA No. 219 of 1998

Thomas v McEather (1920) St R Qd 166

Waldon v Hensler (1987) 163 CLR 561

Widgee Shire Council v Bonney (1907) CLR 977

COUNSEL:

Mr Fitzgibbon for the appellant

Mr P Smith for the respondent

SOLICITORS:

Appellant self-represented

Redland Shire Council (A Ross) for the respondent

1. Between 1 and 21 October 2003 Mr Windshuttle removed used machinery and pieces of metal from land at Byng Road, Birkdale.  To do this work he removed trees and other vegetation.

1. The council claimed the trees and vegetation that were removed were protected vegetation.  Local Law No. 6 made it an offence to damage protected vegetation without a permit.

1. The Redland Shire Council prosecuted Mr Windshuttle for two offences against Local Law No. 6 in proceedings before the learned magistrate at Cleveland.

1. In these proceedings Mr Windshuttle pleaded not guilty.  He defended the proceedings on the grounds that the Council had to prove he had a guilty mind (mens rea).  Further, he claimed he acted under an honest claim of right.  Finally, he claimed he was compelled to do what he did because the Council required him to remove the used machinery and pieces of metal from the land that had accumulated over a number of years.

1. The evidence before the learned magistrate was that the vegetation on one of the lots of land (Lot 18) was protected as described by s 24 (b) of the local law because the vegetation was included in the public open space and special protection designations under the preferred dominant land use map in the Strategic Plan. The vegetation on Lot 18 was protected, as prescribed by s 24 (b) of the local law by its inclusion as green space habitat on the green space map in the Strategic Plan. The vegetation on the other lot of land (Lot 19) was protected as prescribed by s 24 (b) and s 24 (c) of the local law because the vegetation was included in the public open space and urban residential designations under the preferred dominant land use map in the Strategic Plan. Both Lot 18 and Lot 19 were not currently zoned for these purposes.

1. It was common ground that Mr Windshuttle did not have a permit from the council to damage protected vegetation.  He did have a letter from the State Department of Natural Resources advising…