Stay right there, enforcement notice: Planning and Environment Court of Queensland allows an application to stay the operation of an enforcement notice relating to the clearing of native vegetation in a koala habitat area

In brief

The case of Glesk v Chief Executive of the Department of Environment and Science [2023] QPEC 43 concerned an application in pending proceedings by Tibor Glesk (Appellant) to the Planning and Environment Court of Queensland (Court) to stay the operation of an enforcement notice (Enforcement Notice) given by the Chief Executive of the Department of Environment and Science (Respondent) for land situated at Tallowood Close, Little Mountain (Land), until the conclusion of the proceedings (Appeal).

The Court concluded that, in the circumstances, it was appropriate for a stay of the Enforcement Notice to be granted (at [22]). 

Background

The Appeal is against the Enforcement Notice, which states that the Respondent held a reasonable belief that the Appellant committed a development offence in breach of section 163(1)(b) of the Planning Act 2016 (Qld) (Planning Act) being "…the clearing of native vegetation on the land within an area mapped as a koala habitat outside a koala priority area…between 21 January 2021 and 3 February 2021" (at [1]).

The Enforcement Notice required the Appellant to rehabilitate part of the Land by reinstating the vegetation and, in order to demonstrate compliance, to have completed the first of the steps required for rehabilitation by 10 November 2023 (at [2]). 

Given the pending deadline for compliance with the first of the steps required for rehabilitation, the Appellant sought an order that the operation of the Enforcement Notice be stayed until the Appeal is decided, or otherwise ends (at [3]). The Respondent did not oppose the application (at [3]). 

In considering the Appellant's reasons for seeking a stay of the Enforcement Notice, the Court observed that "…there is a genuine prospect of non-compliance with the enforcement notice…" and that it was "unrealistic" that the Appeal could be determined before 10 November 2023 (at [6]). 

The Court had to consider the following issues:

1. Whether rule 658 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) confers upon the Court a power to grant a stay of the Enforcement Notice.

2. If so, whether section 171 of the Planning Act operates to limit the Court's power to stay the Enforcement Notice under rule 658 of the UCPR.

3. Whether, in the circumstances, it would be appropriate to make an order to stay the Enforcement Notice under rule 658 of the UCPR.

Court finds that the UCPR confers upon the Court a power to grant a stay of the Enforcement Notice

The Court held that, pursuant to sections 171(2) and 167(5)(a) of the Planning Act, the commencement of the Appeal did not automatically stay the operation of the Enforcement Notice. The Court also held that the Planning Act does not confer upon it express power to grant a stay of an enforcement notice pending the determination of an appeal (at [7]).

However, the Appellant submitted "…that the power conferred by r 658 of the [UCPR] is sufficiently broad to confer such a power" (at [7]).

Rule 658 of the UCPR states as follows (at [8]):

"(1)    The Court may, at any stage of a proceeding, on the application of a party, make any order, including a                     judgment, that the nature of the case requires.

(2)    The Court may make the order even if there is no claim for relief extending to the order in the originating                 process, statement of claim, counterclaim or similar document."

The Court agreed that "[t]he power conferred by r 658 of the UCPR is expressed in broad terms" and therefore "[t]he broad expression of this rule extends…to granting a stay such as that sought here" (at [9]). In making this finding, the Court had regard to the "…words of the rule itself" and the "well established" matter of statutory construction that "…a power granted to a court is not to be construed subject to a limitation not contained in the grant itself" (at [9]). 

Court finds that section 171 of the Planning Act does not exclude the Court's power to stay the Enforcement Notice under the UCPR

The Court had to determine whether section 171 of the Planning Act "…operates to limit the Court's power to stay the enforcement notice under r 658 [of the UCPR]" (at [10]).

Section 171 of the Planning Act states as follows (at [11]): 

"(1)     An appeal against an enforcement notice stays the operation of the notice until —

(a)     the tribunal or court hearing the appeal decides otherwise; or

(b)     the appeal ends.

(2)    However, the notice is not stayed to the extent the notice is about a matter stated in section 167(5)(a)". 

The Court held that section 171(2) is engaged because the Enforcement Notice concerns a matter stated in section 167(5)(a) of the Planning Act, namely, the clearing of vegetation (at [12]). 

The Court held, however, that section 171(2) of the Planning Act "…does not, in terms, express a prohibition upon the grant of a stay by order of the Court" given that such a limitation is not implied by the "plain words of the section", "[n]or is it supported by surrounding context in the [Planning Act]" (at [13]). 

The Court accepted the Appellant's submissions that "…subsections (1) and (2) of s 171, when read together, have the effect of identifying a subset of enforcement notice appeals having the benefit of a stay…" and that "…s 171(2) of the [Planning Act] identifies a subset of enforcement notice appeals that do not have the benefit of an 'automatic' stay" (at [14]). 

The Court held that section 171 of the Planning Act "…leaves room for a stay to be granted if the nature of the case requires it" (at [14]). The Court went on to hold that "[a] construction that precludes the Court from granting a stay of an enforcement notice about one of the matters in s 167(5)(a) of the [Planning Act] may have the effect of rendering an appeal nugatory and deprive, in a practical sense, an appellant of the appeal rights granted under the [Planning Act]" (at [16]). 

As a result, the Court held that section 171 of the Planning Act does not operate to preclude the Court's power to stay the Enforcement Notice under rule 658 of the UCPR. 

Court finds it appropriate to make an order to stay the Enforcement Notice in the circumstances

The Court had to consider whether it would be appropriate in the circumstances to make an order for the grant of stay of the Enforcement Notice (see [17] to [21]). The Court found that it was appropriate to make such an order having regard to the Enforcement Notice, the notice of appeal, and the following matters:

• It is possible that, if the stay were not granted, the Appellant "…could be prejudiced by having to carry out actions under an enforcement notice that is ultimately found not to have been validly imposed" (at [18]). 

• There is no "pressing need" for the rehabilitation required by the Enforcement Notice given that the alleged offence occurred almost three years ago (at [19]). 

• The Appeal was not "frivolous or unarguable" (at [20]). 

• The Respondent did not oppose the stay nor suggest it would suffer any prejudice if it was granted (at [21]). 

Conclusion

The Court ordered a stay of the Enforcement Notice in accordance with the draft provided by the Appellant (at [22]).