SUPREME COURT OF QUEENSLAND
CITATION:
Witheyman v Simpson [2009] QCA 388
PARTIES:
PETER ROBERT WITHEYMAN
(applicant/appellant)
v
HARVEY SCOTT SIMPSON
(respondent)FILE NO/S:
Appeal No 4021 of 2009
DC No 3536 of 2007DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
15 December 2009
DELIVERED AT:
Brisbane
HEARING DATE:
28 September 2009
JUDGES:
Muir JA, Cullinane and Fryberg JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders madeORDERS:
Leave to appeal granted;1.
Appeal allowed; and2.
Set aside so much of the order of the District Court made on 20 March 2009 as ordered the appellant pay the respondent's costs of the appeal and dismissed the appeal to that court and in lieu thereof order:3.
a. appeal allowed;
b. set aside so much of the orders made in the Magistrates Court on 19 January 2007 as ordered that the charge embodied in count one of the complaint be dismissed;
c. remit the proceeding to the Magistrates Court to rehear and determine count one according to law.
CATCHWORDS:
ENVIRONMENT AND PLANNING – TREES AND VEGETATION – NATIVE VEGETATION – where respondent was charged with three offences including starting assessable development without an effective development permit in breach of s 4.3.1(1) Integrated Planning Act 1997 (Qld) – where respondent was acquitted of all three counts in the Magistrates Court and the applicant's appeal to the District Court was dismissed with costs – where applicant applied for leave to appeal against the District Court judge's decision alleging the judge erred in holding that, on the findings of fact made by the learned Magistrate, the conclusion that the charge be dismissed was correct and in failing to conclude that 19.9 hectares of remnant endangered regional ecosystem had been cleared by the respondent
STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – CONSIDERATION OF EXTRINSIC MATTERS – EXPLANATORY MEMORANDA, PARLIAMENTARY DEBATES AND MATERIALS ETC – where applicant also alleged the District Court judge erred in his construction of the Integrated Planning Act 1997 (Qld) ("the IPA") and Vegetation Management Act 1999 (Qld) ("VMA") by finding, by reference to extrinsic material, that s 4.3.1(1) and cl 3A, Part 1 of Schedule 8 of the IPA should not be given a literal construction and concluding that at relevant times regional ecosystems other than remnant endangered regional ecosystems were not intended to be protected by the IPA and VMA – whether, by removing s 3(1)(a)(ii) of the VMA, the Legislature intended that the VMA would no longer regulate clearing of vegetation on freehold land to preserve remnant of concern regional ecosystems
Acts Interpretation Act 1954 (Qld), s 14A, s 14B
Integrated Planning Act 1997 (Qld), s 1.3.5, s 3.1.1, s 3.5.4(2), s 3.5.4(3), s 3.5.13(4), s 4.3.1(1), Schedule 8, Schedule 10
Integrated Planning Regulation 1998 (Qld), Schedule 1A
Vegetation Management Act 1999 (Qld), s 3, s 11, s 12(1), s 20, s 66B, s 76(3),…
Continue reading Witheyman v Simpson
Sign in free to access the full text
- AGLC
- Witheyman v Simpson [2009] QCA 388
- Case
- [2009] QCA 388
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether the District Court was correct in affirming the Magistrates Court's decision that Simpson's actions did not constitute an offence and whether the District Court erred in its interpretation of the relevant statutory provisions. Witheyman also contended that the District Court erred in its consideration of extrinsic materials when interpreting the statutes and that the Legislature's removal of a particular provision from the Vegetation Management Act 1999 (Qld) meant that the Act no longer regulated clearing of vegetation on freehold land to preserve remnant ecosystems of concern.
The Court of Appeal allowed Witheyman's application for leave to appeal and allowed the appeal. The Court found that the District Court had erred in its interpretation of the relevant statutory provisions and in its consideration of extrinsic materials. The Court held that the removal of the specified provision from the Vegetation Management Act 1999 (Qld) did not mean that the Act no longer regulated clearing of vegetation on freehold land to preserve remnant ecosystems of concern. The Court further held that the District Court had erred in finding that the charge should be dismissed based on the findings of fact made by the Magistrates Court. Consequently, the Court set aside the relevant orders of the District Court and Magistrates Court and remitted the proceeding to the Magistrates Court to rehear and determine count one according to law.
Orders
Orders of the court
Leave to appeal granted;1.
Appeal allowed; and2.
Set aside so much of the order of the District Court made on 20 March 2009 as ordered the appellant pay the respondent's costs of the appeal and dismissed the appeal to that court and in lieu thereof order:3.
a. appeal allowed;
b. set aside so much of the orders made in the Magistrates Court on 19 January 2007 as ordered that the charge embodied in count one of the complaint be dismissed;
c. remit the proceeding to the Magistrates Court to rehear and determine count one according to law.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.