The case of Redland City Council v Burns [2025] QCA 222 concerned an application for leave to appeal to the Queensland Court of Appeal (Court of Appeal) against the decision of the District Court of Queensland (District Court) in the case of Burns v Redland City Council [2025] QDC 15 (District Court Decision) which overturned a decision of the Magistrates Court of Queensland (Magistrates Court) to convict the respondent of a development offence under section 162 of the Planning Act 2016 (Qld) (Planning Act) based on a finding that the respondent, a Quandamooka man, carried out prohibited development by causing the clearing of native vegetation on approximately 2,400 m2 of land on North Stradbroke. The land cleared is the subject of a native title determination of non-exclusive native title rights under the Native Title Act 1993 (Cth) in favour of the Quandamooka people (Native Title Determination).

The District Court's decision to overturn the Magistrate Court's conviction was based on the finding that the Redland City Council (Council) had not excluded that the land clearing was done in the exercise of an honest claim of right under section 22(2) of The Criminal Code (Qld) (Criminal Code) which the respondent had established on the evidence on the balance of probabilities (at [234] of the District Court Decision).

Whilst the minority of the Court of Appeal was not satisfied that the defence under section 22(2) of the Criminal Code was open on the evidence, the majority of the Court of Appeal found no error in the decision of the District Court and dismissed the appeal with costs.

Section 162 of the Planning Act relevantly states as follows:

"A person must not carry out prohibited development, unless—

(a)    the development is carried out under a development approval given for a superseded planning scheme application…"

Prohibited development is development for which a development application may not be made (see section 44(2) of the Planning Act). Schedule 10 of the Planning Regulation 2017 (Qld) (Planning Regulation) states development that is prohibited development.

Section 22 of the Criminal Code relevantly states as follows:

"(1)    Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence.

(2)    But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud."

The respondent defended the charge before the Magistrates Court as follows (see [20] to [23]):

• Cultural activity and exempt clearing – A traditional Aboriginal cultural activity, which is exempt clearing work under schedule 21 of the Planning Regulation and prohibited development, was carried out and is a class of activity in the exercise or enjoyment of native title rights and interests. The Magistrates Court was not satisfied that this argument was made out having found that the respondent was not engaging in a traditional Aboriginal cultural activity because the sole purpose of the land clearing was to erect a "substantial and permanent" house for his daughter and for his family's exclusive use.

• Mistake of fact – A mistake of fact under section 24 of the Criminal Code is made out, which was rejected on the basis that if there was a mistake it was a mistake of law.

• Honest claim of right – An honest claim of right under section 22(2) of the Criminal Code is made out, which was rejected on the basis that section 162 of the Planning Act is not "an offence relating to property" and thus section 22(2) does not apply.

The respondent appealed against the Magistrates Court's findings, arguing that the Magistrates Court erred in respect of its findings with respect to traditional Aboriginal cultural activity and exempt clearing and honest claim of right (at [25]).

On appeal, the District Court relevantly held as follows (see [26] to [33]):

• Cultural activity and exempt clearing – The evidence does not support that the land was cleared as part of a traditional Quandamooka cultural activity and clearing and building for exclusive use involves an assertion of rights in land contrary to the Native Title Determination. Thus, the clearing was not "exempt clearing" under the Planning Regulation.

• Honest claim of right – An offence under section 162 of the Planning Act is an offence "relating to property" within the meaning of section 22(2) of the Criminal Code, and the evidence does not demonstrate a lack of honesty on the respondent's part which would disentitle him to rely upon that section. As the District Court was satisfied that it could find on the evidence on the balance of probabilities that the respondent honestly believed that he was entitled to clear the land for building purposes according to traditional Aboriginal custom, the Council bore the burden of disproving that belief to the criminal standard of beyond a reasonable doubt, and the Council did not do so.

Having regard to the definitions of the terms "offence" and "property" in the Criminal Code and the approach taken by the High Court in the case of Walden v Hensler (1987) 163 CLR 561 and other courts, the Court of Appeal held that the words "offence relating to property" in section 22(2) of the Criminal Code are to be construed broadly (see [52] and [123] to [130]). The majority of the Court of Appeal held that it would be too narrow a view to find that the development offence in this case is not one "relating to property" and that is so whether the "property" is regarded as the land or the vegetation itself (at [153]). The minority view was that the vegetation is the "property" the subject of the development offence (at [72]).

The Court of Appeal reinforced that for an honest claim of right, the act concerned must be "done by the person…with respect to any property" in the exercise of "an honest claim of right" which necessarily excludes acts done in respect of property not the subject of the offence and requires the person seeking to rely on the honest claim of right to honestly believe that the person is entitled to do what they are doing (see [53] to [57], [68] and [155] to [169]). It is also a necessary element of making out an honest claim of right that the claimed right is a right which, if it exists, is a defence to the charge (see [58] to [66] and [68]). This precludes claims based on mere ignorance of the law, which is the effect of section 22(1) of the Criminal Code.

The majority of the Court of Appeal held that the correct approach to section 22(2) of the Criminal Code is to assess whether the act the subject of the offence "…was done in the exercise of a claim of right which, if well founded, would be a private right arising under the civil law and an answer to the offence. It does not matter that the right claimed is not well founded so as to be one not known to the law and that [the] honest belief is not only wrong but unreasonable" (at [171]).

The respondent's claimed right is a private right arising under or out of traditional Aboriginal custom. If it was found that the clearing constituted "exempt clearing" under the Planning Regulation in that it was "[a] traditional Aboriginal or Torres Strait Islander cultural activity, other than a commercial activity", the respondent could not have been found to have committed the development offence because exempt clearing is not prohibited development (see [173] to [177]). Thus, the private right asserted in this case was a complete answer to the offence and the majority of the Court of Appeal was therefore satisfied that the respondent was permitted to rely on the defence which was open on the evidence on the balance of probabilities.

The Council's submission that the respondent could not rely on section 22(2) of the Criminal Code because he engaged a contractor to carry out the land clearing was unsuccessful and the majority of the Court of Appeal held that it was not a bar to the honest claim of right (at [193]).

The majority of the Court of Appeal held that the findings of the District Court were open on the evidence and those findings were not unreasonable as contended by the Council (at [214]).

The majority of the Court of Appeal held that none of the Council's grounds of appeal were made out and therefore dismissed the appeal with orders that the Council pay the respondent's costs.

Those seeking to rely on or defend an honest claim of right under section 22 of the Criminal Code in relation to a development offence are reminded of the following:

• The words "relating to property" in section 22(2) are to be construed broadly.

• An offence committed in relation to "land" or "vegetation", such as by carrying out prohibited development, is an offence "relating to property" for the purpose of section 22 of the Criminal Code.

• Acts done relating to property other than the "property" the subject of the offence does not give rise to an entitlement to rely on section 22 of the Criminal Code.

• An "honest claim of right" requires the person seeking to rely on the defence to honestly believe that they have a "right" to do the act the subject of the offence. The "right" must arise under civil law and constitute a complete answer to the charge. Thus, the "right" asserted can not be mere ignorance or a misunderstanding of the law. 

• That an honest belief is wrong or unreasonable does not preclude a person from seeking to rely on the defence.

• That an honest claim of right exists is required to be established by the person seeking to rely on it on the balance of probabilities. If established, the party who asserts that the honest claim of right is not made out must establish that on the evidence beyond reasonable doubt.