In brief

The case of Serratore & Anor v Noosa Shire Council [2021] QPEC 21 concerned an appeal to the Planning and Environment Court against the decision of the Noosa Shire Council (Council) to issue enforcement notices to each of the seven Appellants (Enforcement Notices) for clearing vegetation on the subject land without a development permit for operational works (Vegetation Clearing).

The subject land is 41 hectares in size and forms part of an "extensive tract of vegetated land" (at [7]). It contains a dam and livestock and is improved with a dwelling, outbuildings, fences and an animal shelter. Each of the Appellants jointly owned the subject land but only three of the Appellants resided in the dwelling on the subject land.

The Vegetation Clearing involved the clearing of vegetation in 12 separate areas on the subject land. The purpose of the Vegetation Clearing was to "create a series of bush fire access tracks and firebreaks/fire lines" (at [9]). The Appellants acted upon recommendations from the local Rural Fire Brigade to establish firebreaks without delay.

The Court was required to determine the following issues:

1.  Whether the four Appellants who did not reside on the subject land (Non-resident Owners) were responsible for or had control over the Vegetation Clearing.

2.  Whether the Enforcement Notices were defective.

3.  Whether the Vegetation Clearing was assessable development.

Subject to the making of final orders in the appeal, the Court ruled that the appeal be allowed and each of the Enforcement Notices be set aside. The Court also refused the Council's submission to make orders and directions either varying the Enforcement Notices, or remitting the matter for new enforcement notices to be issued.

Each of the Non-resident Owners did not commit a development offence

Section 168(1) of the Planning Act 2016 (Qld) (Planning Act) permits the Council to issue an enforcement notice to either:

1. "The person" if the Council "reasonably believes a person has committed…a development offence" (section 168(1)(a) of the Planning Act); or

2.  "The owner of the premises" if the Council "reasonably believes a person has committed…a development offence" and "the offence involves premises and the person is not the owner of the premises" (section 168(1)(b) of the Planning Act).

The Enforcement Notices were drafted in identical terms and alleged that each Appellant "had committed or are committing an offence pursuant to Section 168 of the Planning Act 2016 and in breach of the Noosa Plan" (at [16]). The Enforcement Notices did not allege that the Appellants were liable by reason of their ownership of the premises.

The Respondent conceded in the hearing that each Non-resident Owner was not responsible for, nor had control over the Vegetation Clearing as required by section 168(1)(a) of the Planning Act. The Enforcement Notices issued to each of the four Non-resident Owners were set aside on this basis.

Enforcement Notices were defective

The Appellants contended that the Enforcement Notices had two defects. The first was a failure to "sufficiently describe the nature of the alleged development offence believed to have been committed". The second defect was a failure to provide "[sufficient] details of the acts required to comply with the notice" (at [29]).

Enforcement Notices failed to identify the nature of the alleged development offence

Section 168(3)(a) of the Planning Act required the Council to state "the nature of the alleged offence" in the Enforcement Notices. This required the Council to identify the nature of the alleged offence with "precision", and to "identify the elements which constitute the offence" (at [31] and Benfer v Sunshine Coast Regional Council [2019] QPELR 613; [2019] QPEC 6).

The Court found that the elements constituting the offence included both section 163(1) and (2) of the Planning Act, which relevantly state as follows:

"(1)       A person must not carry out assessable development, unless all necessary development permits are in effect for the development.

(2)         However, subsection (1) does not apply to development carried out–

(a)        under section 29(10)(a); or
(b)        in accordance with an exemption certificate under section 46; or
(c)        under section 88(3)."

The Court provided three reasons why sections 163(2)(a) to (c) of the Planning Act constituted elements of the offence, rather than being exceptions or defences. The first was that section 163(2) of the Planning Act appears together with section 163(1), rather than as a separate and deemed exemption provision. The second was the Court's finding that section 163(2) of the Planning Act is directed at cases involving lawful development, rather than excusing unlawful development. The third was the Council's knowledge of the matters in section 163(2) of the Planning Act.

The Court found that the Enforcement Notices failed to answer the elements in section 163(2) of the Planning Act. In addition, the Court found that each Enforcement Notice failed to precisely identify the alleged offence, including (at [64]):

1.  "When the offence occurred".

2.  "The facts relied upon to allege the offence was still being committed".

3.  "Why the clearing work constituted operational work as defined in the [Planning Act]".

The Court held that each of these failures constituted defects in the Enforcement Notices.

Insufficient details were provided in relation to how the Appellants were to comply with the Enforcement Notices

The Enforcement Notices stated that each Appellant must:

"1.  Immediately cease clearing vegetation on the property….;

 2.  Suitably stabilise the site to prevent movement of soils from the disturbed areas;

 3.  Lodge an application for a Development Permit for Operational Works to reinstate removed vegetation;

 4.  Undertake rehabilitation of the area cleared of vegetation.”

 The Court found that the level of particularity fell well short of the standard required to prove the details of the act (at [69] and section 168(3)(c)(i) of the Planning Act). This was due to the generality in which the terms were drafted, the failure to identify the detail of the acts to be carried out, and the failure to "identify any objective standard by which compliance can be measured" (at [68]).

Carrying out Vegetation Clearing without a development permit was a development offence

The Council was required to prove the following for the Appellants to be found liable for committing a development offence (at [62] and [74]):

1.  The works carried out was 'development'.

2.  The 'development' carried out was 'assessable development'.

3.  The 'assessable development' carried out was not authorised by all necessary development permits.

4.  Any development permit authorising assessable development to be carried out had not taken effect at the time the development was carried out.

5.  The assessable development was not carried out under an exemption certificate under section 46 of the Planning Act.

6.  The assessable development was not carried out under section 29(10)(a) of the Planning Act.

7.  The assessable development was not carried out under section 88(3) of the Planning Act.

The subject land fell partly under the Environmental Protection Area and partly under the Environmental Enhancement Area of the Biodiversity Overlay in the Noosa Plan (at [19] and [84]).

The Court was required to assess whether each cleared area was "exempt clearing", which would constitute accepted development rather than code assessable development under the Biodiversity Overlay Code. This in turn required consideration of "whether, as an alternative to no clearing, the works significantly reduced the extent of clearing required to achieve the identified purpose/s" (at [119]).

The Court found that the Vegetation Clearing was not exempt clearing, to the extent that the width of the clearing carried out exceeded what was reasonably necessary (at [132]). This included the width reasonably necessary to, amongst other things, protect fencing, allow access for emergency vehicles, permit access to dams and animal shelters, and protect the dwelling.

The Court ultimately found that the Vegetation Clearing was assessable development which had been carried out without a development permit. Despite the failure of the Appellants to establish this ground of appeal, this was of no consequence due to the Appellants' success in establishing grounds one and two.

Conclusion

Subject to final orders, the Court ruled that each of the Enforcement Notices be set aside. The Court refused to make orders and directions varying the terms of the Enforcement Notices or remitting the matter for new enforcement notices to be issued. It was conceded by the Appellants, with the agreement of the Court, that the Respondent may issue new enforcement notices to each Appellant if it "holds the belief required by section 168(1) of the [Planning Act]" (at [140]).

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 2021.

Related Articles