In brief

The case of Director, Fisheries Queensland, Department of Agriculture and Fisheries v Scooter Farm Pty Ltd [2020] QPEC 35 concerned an originating application to the Planning and Environment Court (Court), in which the Applicant sought the following:

(a) Unlawful development – a declaration that destroying or damaging marine plants in a tidal area was assessable development for which there was no effective development permit and therefore such development was unlawfully carried out.

(b) Rehabilitation works – orders requiring rehabilitation works, such as "returning the tidal area to the marine characteristics that existed prior to the development" (at [1]).

The Applicant had initially sought orders in respect of rehabilitation works under section 11 of the Planning and Environment Court Act 2016 (PECA); or in the alternative under section 180 of the Planning Act 2016 (Planning Act). Subsequently, the Applicant withdrew its application under section 180 of the Planning Act, as it was accepted that "since any development offence in this case was one committed under the SPA, it is not one which can form the basis of an application for an enforcement order under section 180 of the PA" (at [4]) in light of judicial consideration in Benfer v Sunshine Coast Regional Council [2019] QPEC 6).

On the first day of the hearing, the parties had proposed that consent orders were to be made by the Court. The consent orders included declarations that the development was carried out unlawfully, and orders which required the Respondent to carry out rehabilitation works (Rehabilitation Orders).

Prior to ultimately making the declarations that the development was carried out unlawfully, the Court considered whether it had jurisdiction to grant the Rehabilitation Orders.

Does the Court have jurisdiction to grant an order requiring the Respondent to undertake rehabilitation works under section 11 of the PECA?

The Court considered that in order to grant the Rehabilitation Orders under section 11(4) of the PECA, the provision required that "the order be about the declaration or one or some of those that the Court makes. That calls for attention to be given to the declarations and to the nexus between them and the orders sought, to see whether the latter is about the former" (at [9]).

In considering the nexus between the Rehabilitation Orders and the declarations about the unlawful development, which was destroying or damaging marine plants in a tidal area, the Court observed that:

(a) The Rehabilitation Orders were not about the declarations that the development was unlawful.

(b) The Rehabilitation Orders were about new obligations, which did not flow from the declarations that the development was unlawful.

(c) The Rehabilitation Orders "compel the [R]espondent to address the impacts of the underlying unlawful conduct", which was the kind of relief that was to be sought under section 180 of the Planning Act.

(d) The Respondent did not have an obligation to undertake the actions proposed in the Rehabilitation Orders and would not have such an obligation by reason of the declarations.

Conclusion

The Court concluded that it did not have jurisdiction to make the Rehabilitation Orders as those orders were not about the declarations that the development was carried out unlawfully.

However, the Court ultimately made the consent orders proposed by the parties, save for the Rehabilitation Orders.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.

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