Ball v Eric Child and Sons Pty Ltd & Anor [2025] QDC 81

DISTRICT COURT OF QUEENSLAND CITATION: Ball v Eric Child and Sons Pty Ltd & Anor [2025] QDC 81 PARTIES: STEPHEN JOHN BALL (Appellant) v ERIC CHILD AND SONS PTY LTD (First respondent) And DOWN UNDER CONSTRUCTIONS PTY LTD (Second respondent) FILE NO: 1478/24 and 1479/24 DIVISION: Appellate PROCEEDING: Appeal pursuant to s 222 of the Justices Act 1886 (Qld) ORIGINATING COURT: Magistrates Court, Brisbane DELIVERED ON: 12 June 2025 DELIVERED AT: Southport HEARING DATE: 11 April 2025, 8 May 2025 JUDGE: Kent KC DCJ ORDER: 1. Appeals allowed on all grounds and the judgement below of acquittal set aside; 2. On the re-hearing conducted pursuant to ss 222 and 223 of the Justices Act 1886 (Qld) the respondents are found guilty of the offence of carrying out assessable development without an effective development permit contrary to s 163(1) of the Planning Act 2016 (Qld). 3. The parties are to be heard as to penalty. CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST AQUITTAL – where the appellant appeals against an order of the Magistrates Court dismissing complaints under s 163 of the Planning Act 2016 (Qld) – where the assessable development was the clearing of native vegetation protected by Logan City Council’s Planning Scheme 2015 – where the clearing was carried out by the first respondent at the request of the second respondent – whether there was some legal, factual or discretionary error CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – -- 1 of 40 -- 2 GENERAL PRINCIPLES – where the magistrate found that the evidentiary foundation for some of the expert opinion evidence was not properly established – where the magistrate found that evidence was infected by other inspections – whether the appellant had proved to the required standard that there was native vegetation included in the cleared vegetation CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – IGNORANCE AND MISTAKE OF FACT – AVAILABILITY OF DEFENCE OF HONEST AND REASONABLE MISTAKE – where the magistrate found that the respondent was excused from criminal liability because of mistake of fact – whether the respondents were criminally responsible for any such acts given the operation of s 24 of the Criminal Code – whether the relevant act done was “with respect to any property” under s 22 of the Criminal Code such as to engage s 22 – whether in any case an arguable defence under s 22(2) was open on the evidence LEGISLATION: Criminal Code (Qld), s 7, s 22, s 24 Planning Act 2016 (Qld), s 163 Justices Act 1886 (Qld), s 222, s 223 CASES: Ahwang & Anor v Slatcher [2021] QDC 40 Baker v Smith (No. 1) [2019] QDC 76 Burns v Redland City Council [2025] QDC 15 Director-General of the Dept of Land and Water Conservation v Greentree (2003) 131 LGERA 234 Fox v Percy (2003) 214 CLR 118 Garcia v National Australia Bank Limited (1998) 194 CLR 395 Giorgianni v The Queen (1985) 156 CLR 473 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 McDonald v Queensland Police Service [2018] 2 Qd R 612 McDonald v Holeszko [2019] QCA 285 Molina v Zurich [2001] WASCA 337 Mueller v Vigilante (2007) 215 FLR 58 Olsen v Grain Sorghum Marketing Board; ex parte Olsen [1962] Qd R 580 Ostrowski v Palmer (2004) 218 CLR 493 R v Licciardello (2018) 3 Qd R 206 R v Thrupp [2024] QCA 134 R v Waine [2006] 1 Qd R 458 Rowe v Kemper [2009] 2 Qd R 247 Scriven v Sargent (No. 2) [2018] 1 Qd R 282 Stevenson v Yasso [2006] 2 Qd R 150 Tierney v Commissioner of Police [2011] QCA 327 Walden v Hensler (1987) 163 CLR 561 COUNSEL: J Hunter KC with K Wylie for the appellant R O’Gorman KC with H Rafter for the first respondent -- 2 of 40 -- 3 A Smith with L Walker for the second respondent SOLICITORS: McInnes Wilson Lawyers for the appellant HopgoodGanim Lawyers for the first respondent Redchip Lawyers for the seconds respondent Introduction [1] The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld) against an order of the Magistrates Court at Brisbane dismissing the appellant’s complaints against the respondents under s 163 of the Planning Act 2016 (Qld) for the offence of carrying out assessable development without the necessary development permits in effect. The particularised assessable development was the clearing of native vegetation protected by Logan City Council’s Planning Scheme 2015 v.8 (the Scheme) which was in effect at the time of the alleged offence in early 2021. The clearing was carried out by the first respondent at the request of the second respondent, which was said to be a party to the offence. The background was that the owner of the land, Mr Rice, had sold it to a company, Predicate Pty Ltd, which intended to develop it by building industrial sheds. Predicate did not have a development approval at the time, in fact its application was refused by Council on 14 July 2022 and was subject, at the time of the trial, to an appeal to the Planning and Environment Court. The second respondent was Predicate’s builder and organised pre-construction clearing to be done by the first respondent, a company whose business was land clearing. [2] At the trial, it was common ground that the clearing, which was virtually total clearing of the subject lot, had been done as alleged, and had been done by the first respondent. It was paid for by the then property owner, Mr Rice (the contract of sale seems to not have proceeded to settlement at the time), who was reimbursed for it apparently by an entity associated with the second respondent, the “abs partnership”: see Exhibit 22D (he initially thought the new owner, Predicate, was to pay it, T 2-55 lines 1-9). What was in issue was (a) whether the appellant had proved to the required standard that there was native vegetation included in the cleared vegetation and (b) whether the respondents were criminally responsible for any such acts given the operation of s 24 of the Criminal Code, namely that there was an operative mistake of fact by the first respondent to the effect that there was a relevant development permit in effect. -- 3 of 40 -- 2 Further, for the second respondent, it was in issue as to whether the party provisions were engaged. [3] Grounds of the appeal included the ruling by the trial magistrate that evidence about the character of the cleared vegetation from a witness, Sean Dench, was inadmissible; her Honour’s treatment of the evidence of another expert witness, Mr Alexander; overall, and the first two grounds contributing to, the appellant’s challenge to the finding it had not proven the presence of native vegetation; and the s 24 point. A further issue emerging on appeal was whether, if the appellant succeeded on the issue of establishing that native vegetation was cleared, a possible defence under s 22(2) of the Code, an honest claim of right, might exculpate the respondents. [4] The complaints against the two respondents were separate but heard together. Thus, there are separate appeals, which again were heard together and a single judgment dealing with both appeals is appropriate. The Scheme [5] The Council’s planning Scheme provided that the land in question fell within the Primary Vegetation Management Area in the Scheme’s Biodiversity area overlay. The purpose of the overlay is to connect Biodiversity corridors, protect and enhance habitat values and ecosystem functions and protect scenic amenity values: see the Biodiversity areas overlay code, Purpose 8.2.2.2(1). Performance Outcome 2 required protection of the current extent of native vegetation. Further the State level mapping shown in Exhibit 18 identified the relevant vegetation as being remnant vegetation containing endangered regional ecosystems. The Protected Plants Flora Survey described it as a high-risk area. It was a koala habitat area (the respondents seem to have been aware of this, so that a “spotter” was employed during the clearing as part of the quoted price) and contained Endangered Regional Ecosystem. [6] These features demonstrate the subtleties and complexity of planning issues, and the fact that planning instruments and their priorities develop over time. The area is zoned medium industrial and there are neighbouring developments of that kind, yet the planning instruments referred to above prioritise ecological issues (including connection of Biodiversity corridors) in management of this remnant vegetation. The fact that surrounding land has been developed as industrial uses over years (perhaps -- 4 of 40 -- 3 importantly, leaving the remnant vegetation in place) does not erode, and may enhance, the importance of these planning priorities in the present version of the Scheme. The nature of the appeal [7] The appeal is pursuant to a statutory right in s 222 of the Justices Act. Section 223 provides that such an appeal is generally a rehearing on the evidence. It involves a review of the record of proceedings below, subject to this court’s power to admit new evidence. Generally, to succeed, an appellant needs to show some legal, factual or discretionary error; see, for example, Tierney v Commissioner of Police [2011] QCA 327 at [26]. This court must make its own determination of the relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the trial magistrate’s view; Rowe v Kemper [2009] 2 Qd R 247 at [3], also McDonald v Queensland Police Service [2018] 2 Qd R 612 at [47]. It is convenient to deal with the grounds of appeal in turn. Ground 1 - The exclusion of the evidence of Mr Dench [8] A central issue in the case was whether there was shown to be native vegetation, as defined in the scheme, present on the land prior to the clearing. The Council did not have to show that the site was entirely and exclusively vegetated with native vegetation or even that it was in the majority. It was sufficient to prove that there was some native vegetation on the site that was cleared: see Baker v Smith (No. 1) [2019] QDC 76 at [871]-[876]. Mr Dench’s evidence [9] Mr Dench was a council officer who gave evidence about his observations of the area prior to the clearing. He had a degree in arboriculture, and his qualifications and experience permitted him to identify tree and flora species. He was familiar with the site because, in his role as a team leader of the Council’s illegal dumping task force, he passed the site frequently. The site was at 47-53 Meakin Road at Meadowbrook which is within Logan City. Mr Dench said he had driven past it regularly, almost for the whole of his career working for Logan City Council and more frequently in the four to five years prior to the relevant events. This frequency was, in his description, definitely weekly and almost every two to three days. -- 5 of 40 -- 4 [10] He gave evidence that the vegetation included trees ranging in height between 12 to 25 metres, and the trees that were cleared comprised native vegetation. The expression of this opinion was based on his work as an arborist over the years. He could see that the trunks of the trees visible from the road were Eucalypt, Corymbia (which had also been found in 2007, see [103] below) and some Melaleuca, all of which were native genera and included native species. The visible canopies were also indicative of Eucalyptus. He said that he could visually observe about a half to three quarters of the site. He described it as largely a Eucalyptus forest. The Magistrate’s finding [11] The appellant challenges the conclusion of the trial magistrate that the evidence of Mr Dench should be excluded. This was based on a finding that the factual basis for Mr Dench’s opinions was not properly established, having regard to the principles set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. These may be summarised as referred to by Heydon JA at pp 742-743, paragraph [85]: “In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of specialised knowledge; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness's expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on assumed or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight.” [12] The central finding of her Honour as to Mr Dench’s evidence is set out at T1-8 lines 6-8 of her decision namely that the factual basis for his opinion was not sufficient to permit admission of the relevant opinion. -- 6 of 40 -- 5 [13] The context of this conclusion, relevantly to the consideration of the Makita principles included that there was no dispute that: (a) there was a relevant field of specialised knowledge, either botany generally or arboriculture (the cultivation of trees or shrubs); (b) there was an identified aspect of that field in which the witness demonstrated that by reason of specific training, study or experience he had become an expert (identification of native vegetation); (c) his opinion was based on his expert knowledge as applied to his observations; and (d) although his evidence varied on the actual number of his observations, at the lowest estimation thereof he had seen the site many times, and this evidence was uncontradicted. [14] Rather the dispute was as to the proof of the relevant facts underpinning his opinion. There was no suggestion of assumed facts underpinning his opinion, indeed it was based on his personal observations over some time. The problem was that Mr Dench’s creditworthiness was attacked as to the nature and quality of his evidence of his previous ongoing observations of the site and whether it formed a sufficient factual basis for the opinions. The appellant’s submissions [15] The appellant argues that the finding of the trial magistrate was flawed, including that her Honour did not precisely describe the missing “factual basis”, but did refer to some matters which may affect Mr Dench’s overall credit worthiness as a witness. These include that he observed the vegetation from a moving vehicle; that this aspect of his evidence – of ongoing frequent visits – was not included in his original statement and, indeed, seemed to develop over time; that it was not really credible that he would pass the site as often as he said given that the relevant part of Meakin Road was a cul-de-sac; and an inference that his evidence was impermissibly infected by his inspection of the site, where evidence of that inspection was not admitted into evidence. This last proposition emerges from the fact that some evidence was excluded because a warrant to enter the property was improperly obtained. Evidence -- 7 of 40 -- 6 therefrom – an entry and inspection of the property – was thus not admitted. That conclusion is not challenged by the appellant; however, it argues that this is overall a minor and non-determinative feature in the sense that Mr Dench’s observations on the impugned occasion were a very small part of his years-long experience and observations of the site. The factual basis was proved [16] The appellant’s challenge to the exclusion of Mr Dench’s evidence includes that the factual basis for it was proved in evidence and, indeed, was largely uncontroversial. He had relevant qualifications in arboriculture that permitted him to identify the relevant species. He had observed the area frequently and was able to give clear and unambiguous evidence about the nature of the vegetation. Further, this is against the background that the presence of Australian native vegetation species on such a site is scarcely surprising; indeed, looked at sensibly, it was probably inevitable. Australian native vegetation is, obviously enough, endemic to south-east Queensland. It was suggested in the evidence that the site had been last cleared in the 1970’s; the idea that the remnant vegetation could thoroughly regenerate on the site over a period approaching 50 years (this is consistent with the height of the trees observed) without any native vegetation being present seems at least very doubtful and probably represents an affront to common sense. Thus, Mr Dench’s evidence was of a proposition that was close to irresistible, that there was some native vegetation on the site. It did not stand alone, as discussed below. The evidence was part of the broader evidentiary matrix [17] Mr Dench’s evidence was in the context of, and supported by, other evidence including that of Mr Alexander and the aerial photographs, supportive of the same conclusion which in any event was uncontradicted by other evidence and indeed had an air of inevitability. [18] The appellant points out that Mr Dench maintained his opinion despite vigorous cross-examination. Importantly, the magistrate did not find him to be an untruthful witness (nor did her Honour refer to his demeanour, which is relevant to the exercise of appellate reconsideration of factual findings based on credibility). The inspection of the site on 14 September 2021, evidence of which was inadmissible as outlined -- 8 of 40 -- 7 above, was after the clearing and did not infect Mr Dench’s evidence in any sensible way. Standard of proof? [19] The magistrate criticised Mr Dench’s evidence as being a description that “more likely than not” the vegetation was native vegetation, which would be insufficient. However, this criticism is incorrect. When the transcript is examined, in fact what he said was, in the context of a challenge as to whether there were exotic plants (or weeds) on the site in addition to the native vegetation, that “I would suggest that the – the property would more than likely be close to entirely native tree species.” (T3- 57 lines 18-31 - emphasis added). This incorrect characterisation of Mr Dench’s evidence undermines her Honour’s ruling. Respondents’ submissions [20] The respondents’ arguments in supporting the correctness of the magistrate’s ruling include, as noted above, that in his original statement Mr Dench had identified the native vegetation based on the inspection from the improperly obtained search warrant. His original statement did not make mention of the previous observations which he gave evidence of at the trial. This addition to Mr Dench’s evidence came only days before the trial commenced in April 2024, possibly after it was realised that there was a problem with the warrant. The evidence he gave of having driven down the area of Meakin Road, which was a cul-de-sac, in effect, hundreds of times (as he described in cross examination) is argued by the respondents to be not credible, although he was as mentioned the team leader of the Council’s illegal dumping task force. He explained that he would regularly patrol that length of road for public nuisance matters and illegal dumping. The relevant property stood out because it was one of the last remaining sites on the Meakin Road stretch, and because of the density and size of trees (T3-45 lines 1-7). More generally, the respondents argue that Mr Dench’s credibility has been seriously eroded such that his evidence should not be relied upon, consistent with the ruling at trial. Conclusion re: Ground 1 [21] On this issue, my conclusion is that the appellant succeeds, having given due deference and weight to the conclusions of the trial magistrate but reaching my own -- 9 of 40 -- 8 conclusion as to the relevant facts on the evidence. The various criticisms of Mr Dench’s evidence, whilst some are certainly legitimate, must be considered in the context of the overall factual matrix of the case. He had relevant qualifications, had on any view of it observed the area on many occasions and was not found to be dishonest, albeit he may have exaggerated the number of times he had made relevant observations. Moreover, and in my view importantly, his evidence did not stand alone. As will be seen, there was other evidence from Mr Alexander – including, as discussed below, his commentary on the aerial photography and apparent homogeneity of vegetation in the area and the photographs of trees on the cleared site – establishing that there was native vegetation present on the site. Mr Alexander’s evidence does not suffer from the criticisms levelled at that of Mr Dench. [22] There is also force in the appellant’s argument that essentially, eucalypts and other native vegetation are so endemic to south-east Queensland that – as mentioned above – in an area of remnant vegetation such as the one under discussion it defies common sense that there would be no eucalypts or other native vegetation present. As noted above, evidence suggests it had been cleared in the 1970’s; the vegetation including native species had therefore a time frame of 50 years or so to regenerate, which is consistent with the evidence as to the height of the trees. It may have been, as advanced in cross-examination, that beneath the extensive canopy shown on the images there was an understory of a “sea of lantana”. This does not alter the conclusion that native vegetation was inevitably present, as proven on the evidence as a whole. Overall, and with due respect to the magistrate’s advantage in hearing the evidence and her Honour’s conclusions, in my conclusion Mr Dench’s evidence did demonstrate a sufficient factual basis for his opinion to be admissible. Moreover, as set out below, it is inescapable that the appellant established beyond reasonable doubt on the evidence that there was some native vegetation on the site prior to its being cleared. The challenge to the admissibility of Mr Dench’s opinion fails and thus this ground of appeal succeeds. Ground 2 – The failure to accept the evidence of Mr Alexander The nature of the evidence [23] Mr Alexander was an independent expert with an Honours degree in environmental science and a diploma in horticulture (the science and art of cultivating plants). His -- 10 of 40 -- 9 evidence was admitted by the magistrate – Decision p 1-8 at line 9 – but found to not establish the relevant propositions beyond reasonable doubt, lines 15-17. He had 30 years’ experience in identifying particular types of flora species within Australia and extensive experience in mapping vegetation from satellite imagery including, for example, entire National Parks. His expertise was not seriously questioned. [24] He inspected the site in October 2023, after the clearing event. He expressed the opinion that vegetation cleared from the site was native vegetation, relying on several features as follows. Homogeneity [25] The vegetation on land immediately adjoining the site to the east and south, upon on- ground inspection, was native vegetation consisting mainly of a Eucalypt community, dominated by Eucalyptus Tereticornis, Eucalyptus Moluccana and Acacia. There was also, perhaps unsurprisingly, some non-native vegetation including Lantana. [26] The site’s preclearing satellite image, a copy of which is in evidence, shows an apparently homogenous vegetative form on the site and the adjoining land. The vegetation on the site itself is quite homogenous in appearance and basically indistinguishable from the vegetation Mr Alexander was able to physically inspect on the adjoining land. The image, on his evidence, showed a Eucalypt woodland community indistinguishable from the neighbouring woodland to the east and south. [27] This is unsurprising in my view. After there had been previous clearing of the site decades earlier, it is to be expected that the vegetation would be regenerated by generally the same species as the neighbouring land. Rhetorically, why would one expect it to grow back differently from the adjoining remnant vegetation in the locality; why would Nature recognise such a demarcation? No reason was advanced by the respondents as to why the site in question would regenerate such as to contain wholly exotic vegetation, quite markedly different from the neighbouring environment. Native vegetation on cleared site -- 11 of 40 -- 10 [28] Mr Alexander was also able to identify native vegetation in the cleared fallen trees in photographs of the site taken by Council on 19 April 2021 immediately after the clearing, Exhibit 9. State mapping and aerial imagery [29] Mr Alexander also had regard to State mapping (Exhibit. 18) which is on his evidence reliable, consistent with his observations and describing the area as native vegetation. He also relied on aerial imagery as explained at T3-77. I note that this kind of factual basis for such opinion evidence is not unusual in cases of this kind – see, for example, Baker v Smith (No 1) (2019) QDC 76 at [874]; “…the sameness of the vegetation emerges consistently from the satellite imagery, from the similarity of the vegetation described by Mr Dillewaard, and from the regional ecosystem maps.”. See also [794]- [796]. Magistrate’s criticisms Influenced by other inspections? [30] Her Honour characterised Mr Alexander’s evidence as being “largely based upon his opinions which was initially sought to review the site inspection which had been conducted by Council officers” with a related suggestion that his opinion was “infected by other inspections conducted by Council officers” (reasons, T1-7, lines 5-14). This is argued by the appellant to be an unfair attack on his evidence. He gave clear evidence as outlined above and maintained his opinions in cross- examination. He rejected the suggestion that his evidence was infected by other inspections by Council officers – for example, at T3-82 lines 31-32 and again at T3- 88 lines 20-22 he said that he was confident it was native vegetation without having seen Mr Dench’s arboricultural report - thus there is no evidence of this proposition. There was nothing in his evidence supporting a finding that his opinions were reliant upon or unduly influenced by other inspections of the post cleared site. Significance of zoomed in image [31] The magistrate was critical of Mr Alexander’s evidence about the satellite photograph imagery, noting that a “zoomed in” image on a computer screen which he mentioned was not produced in evidence (T3-78, lines 6-22); decision 1-7, lines 16-22. It is not -- 12 of 40 -- 11 clear to me that, as the appellant submits, the magistrate ruled this evidence inadmissible, but it was the subject of criticism. [32] This criticism is resisted by the appellant, saying that the part of Mr Alexander’s evidence under discussion was not about the images in Exhibits 1 and 2, but related to different images put to him by the first respondent’s counsel forming part of a brief of instructions originally given to him by Council and disclosed to the defendants. That material was not put into evidence. Mr Alexander expressed no similar qualifications about his opinions when expressing them by reference to Exhibits 1 and 2. Further the images that were relied upon by Mr Alexander were tendered. Any use of a computer to “zoom in” on those images did not change the nature or character of the image, but simply permitted a clearer view. The comparison is made to the simple use of a magnifying glass to look at a photograph, or an oral description of observations by a scientist viewing a specimen through a microscope. It was not suggested that the zoomed in view was crucial to Mr Alexander’s opinion. Aerial photography alone? [33] Her Honour also expressed concern as to whether there was a firm evidentiary basis establishing that there was an accepted field of study with respect to identifying vegetation based on aerial photography alone as compared to a combination of aerial photography and on ground inspections (reasons T1-7, lines 26-30). However, Mr Alexander did explain how he could identify vegetation type from satellite imagery and had done so for many years. Further, the evidence was that reliance on satellite imagery alone was not used to identify the nature of the pre-cleared vegetation, rather he had regard to “a combination of aerial photography coupled with on ground inspections” (as in Baker v Smith (No 1) above). He referred to the similarity of the vegetation shown in satellite imagery to adjoining existing vegetation (the homogeneity noted above); the consistency of the pre-cleared vegetation with that identified by State mapping as native vegetation and his consideration of photographs of trees cleared on the site that were taken immediately after the clearing. Again, he was able to identify species from those photographs. Relevance of tree height -- 13 of 40 -- 12 [34] The magistrate also referred to evidence about tree height. The scheme defines a “native tree” as having a height of at least four metres (Exhibit 3, page 93). Mr Dench and Mr Alexander gave evidence that the cleared trees were well in excess of this height, but in any case, the real question was whether the cleared vegetation was “native vegetation” not “native trees”, such that examination of that description was an irrelevant distraction. The appellant’s submissions [35] In this context it is submitted by the appellant that the trial magistrate erred in concluding that Mr Alexander’s evidence did not establish the relevant matters beyond a reasonable doubt. Further, his unchallenged evidence about the photographs of the felled trees taken shortly after the clearing event on the site (evidence which her Honour did not refer to) is sufficient to prove to the required standard that the vegetation cleared did comprise native vegetation (as well as native trees). Respondents’ submissions [36] The respondents propound the conclusions of the magistrate in this regard, saying that the feature that the zoomed in view of images was not in evidence was problematic. However, the respondents concede that Mr Alexander’s evidence was that based inter alia on the images which were in evidence he was confident the cleared vegetation was native vegetation. In relation to his evidence as to the photographs of vegetation on the cleared site it is said that although they are identified as native vegetation, there is no evidence as to where the trees were before they were felled and no evidence, therefore, that they were cleared from the overlay areas and the possibility that they were not so cleared was not excluded. [37] I do not find that submission persuasive. The idea that the first respondent cleared mature native trees exclusively from the relatively small area of the site which was not the subject of an overlay (given that there does not seem to be any suggestion, and certainly no evidence, that it knew of the overlays and certainly there is no reason why the natural process of regeneration of native vegetation would respect such boundaries over the previous decades), and then placed them, for unknown reasons of which there is no evidence, into the overlay area – where they clearly were and -- 14 of 40 -- 13 where, on the respondent’s arguments there must have been a complete absence of such native vegetation prior to clearing – assumes, frankly, an air of unreality. [38] In my conclusion, Mr Alexander’s evidence is not vulnerable to the criticisms made of it; was uncontradicted; and should have been accepted to the required standard, notwithstanding the due deference to be accorded to the magistrate’s views. The result is that the appellant is successful as to ground 2 of the appeal. Moreover, the fact that Mr Alexander’s evidence was admissible, as the magistrate concluded, and should have been accepted to the required standard, supports the conclusion as to the evidence of Mr Dench. That is the evidence of Mr Dench, whatever criticisms are made of it does not stand alone. It falls in the context of the stark evidence of the photographic images and the understandable and, with respect, compelling evidence of the soundly based opinions of Mr Alexander. Conclusion as to Ground 2 Pre-clearing presence of native vegetation proved [39] Thus, my conclusion as to this issue is that I find, with the greatest respect, that the magistrate erred in the fact-finding process as to the evidence of both Dench and Alexander. The evidence of Dench should have been admitted and their collective evidence should have been accepted beyond reasonable doubt as to the presence of native vegetation on the pre-cleared land, so that this element of the offence was proven, and I so find. [40] I reach this conclusion bearing in mind the caution required in reconsidering factual findings on appeal; see e.g. Fox v Percy (2003) 214 CLR 118. Where a court of appeal is conducting an appeal by way of rehearing, it must perform its statutory function, and “In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.” (at [28]). Here the evidence of Dench and Alexander was uncontradicted. Dench’s evidence was criticised as to credibility, but not, as I read the reasons, that of Mr Alexander. Dench was not found to be untruthful. No reference was made to demeanour of witnesses (an area of advantage enjoyed by the judicial officer at first instance) – the challenges were as set out above. -- 15 of 40 -- 14 [41] It was stated by the High Court in Fox v Percy that in some cases although the facts may not be incontrovertible, “an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case.” (at [29]). In my view this is such a case – the finding that the appellant had not proven, by its uncontradicted, qualified, rational and apparently reasoned and reasonable expert evidence, that there was some native vegetation on the land pre- clearing was glaringly improbable, and at least contrary to compelling inferences. Thus, this court “…is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion” (also at [29]). Ground 3 - Criminal Code s 24 was not engaged for the first respondent. [42] The magistrate found that the first respondent was excused from criminal liability because of mistake of fact (s 24 of the Code). The mistake was described as: “The evidence with respect to Eric Child and Sons that their belief was not necessarily confined to a specific approval, just that they believed that there was an approval of permit in place.” (Reasons T1-9, lines 31-33) [43] The appellant challenges this conclusion. There were no development approvals ever given that would have authorised the impugned vegetation clearing (Exhibit 3, paragraph 4). There was only one development approval ever given which was for a material change of use for a general industry shed in October 2007. This was for a material change of use, not operational work, which is a separate sub-category of development according to Schedule 2 of the Planning Act. Thus, such an approval could never authorise vegetation clearing to be carried out on the site. Further, having been issued in 2007, the previous approval lapsed many years before the site clearing occurred. True it is that steps can be taken to keep a development approval in force; there is however no suggestion on the evidence here that this happened or that there was an evidentiary base for a belief by the respondents that it had happened or that they had such a belief as to renewal or maintenance of the approval from 14 years previously. [44] As to the basis for a mistaken belief, there was a photograph of a Stormwater Management Plan (i.e. a drainage plan) from the 2007 approval (part of Exhibit 9) -- 16 of 40 -- 15 and a belief expressed by Mr Child to an investigator that he had been “provided with copies of what he believed to be approvals prior to agreeing to take on the job…and that he was under the impression that the clearing was approved” (at T3-11, lines 34- 37). The photograph of the plan which is in evidence shows that it bore a stamp as to approval in 2007 and said nothing about maintenance or renewal or otherwise still being in force. It was in any case a drainage plan which while helpful as to a surcharge pond and swale overflow, said nothing of clearing approval. [45] Mr Child also said to an investigator that he was assured by a representative of the second respondent that “this one was all above board from State Government”, a possible reference to correspondence from the State Government Department of Natural Resources and Water of 15 August 2007 addressed to Council which is part of exhibit 21D and attached to an email of 19 April 2021 (i.e. after the clearing) from Mr Kenward of the 2nd respondent to Mr Rice, the then owner (not, apparently, to Mr Child). Further, exhibit 20D is an email of 12 April from Mr Kenward to Mr Child attaching documents which do not include a State Government document but do include a copy of the Council’s Development Enquiry Tool. This does not seem to have an operative date displayed but it seems to assert that as at 2015 (page 2 of the exhibit, possibly a reference to the relevant version of the Scheme) there was an undetailed “permit in force” (page 5 thereof). It is accepted this enquiry result was in force, i.e. visible on the Council website, as at the date of the trial (exhibit 14). Appellant’s submissions [46] The appellant submits that s 163(1) of the Planning Act prohibits assessable development (such as clearing) without necessary development permits being “in effect” for the development. The use of this phrase is indicative that the relevant conclusion is a mistake of law rather than fact; that is the question of a development permit being legally effective is a legal proposition, rather than, for example, a factual issue such as whether such a permit has been issued or not. [47] The appellant points out that the situation is analogous to Scriven v Sargent (No. 2) [2018] 1 Qd R 282 where Boddice J (as his Honour then was) set out at [19], dealing with similar considerations under s 22(2) of the Code (honest claim of right): “Relevantly, s 22 of the Criminal Code provides that a person is not criminally responsible, for an offence relating to property, or for an act done or omitted -- 17 of 40 -- 16 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. Section 22 does not operate if the relevant belief would not constitute a defence to the relevant charge. It also does not operate if the relevant relief (sic – “belief”) merely amounts to ignorance of the law.” In this case the error was that the previous approval or permit was still in effect, but as such documents, if in effect, would not have permitted clearing, on the above formulation such an error would not be a defence to the charge. Further at [26] his Honour said: “The belief claimed by the applicant amounted to no more than an assertion that he honestly believed he had an entitlement to act in relation to the native vegetation. That assertion amounts to no more than an allegation he was unaware of the effects of the relevant legislation. Such a claim, even if held honestly, is not protected by s 22 as it merely amounts to ignorance of the law.” [48] Scriven was also a land clearing case, under the previous Integrated Planning Act. The offence was carrying out assessable development without an effective permit. The Court concluded at [31] that the section: “…created an offence of general application that operated irrespective of any proprietary or lesser right in respect of that native vegetation. As the claimed right constituted no defence to the charge, s 22 of the Code had no operation in the instant case”. The right asserted in Scriven was different to what is relied upon here: in Scriven the appellant referred to property rights as a registered owner of the land, e.g., under the Land Title Act 1994. Here the belief is that a development approval or other document existed which was in effect and permitted the clearing. Nevertheless, the appellant here relies on conceptual similarities in the principles; the offence under consideration is one of general application, and the argument is that the first respondent’s mistake as described in [42] – [45] above is an error of law which does not avail it. The phrase “proprietary or lesser right” in the quoted passage may be of some interest in the present context; a “lesser” right could include the right possibly created by an approval or permit in the hands of a non-owner with no proprietary or other interest in the land cleared (which is the asserted position of the respondents here), although it is doubtful that a right which is less that a proprietary right would be sufficient to activate the defence. -- 18 of 40 -- 17 [49] The reasoning in Scriven applies to the present case. Even if the previous approval had been in place (of which there is no evidence other than the obscure phrase “permit in force” with no explanation of what the undetailed permit permitted) it did not permit operational work such as clearing, and there was nothing on the 2007 drainage plan to suggest it did. Thus, the relevant belief seems to rise no higher than one which, in the words of Boddice J, would not constitute a defence to the relevant charge. [50] Further, the appellant’s point is that the present case is analogous to Scriven, where any mistake about the existence of a development permit being “in effect” for the vegetation clearing was in any case a mistake of law, not fact and thus does not provide an excuse. The reasoning in Scriven was confirmed in McDonald v Holeszko [2019] QCA 285 at [21]. [51] The situation is also said to be analogous to that discussed by the High Court in Walden v Hensler (1987) 163 CLR 561 where the offence under discussion imposed a general prohibition upon the taking or keeping of the prescribed fauna irrespective of any proprietary or lesser right. The offence was committed regardless of whether a person was exercising rights of ownership or traditional rights of hunting concerning the fauna. Deane J observed at 583 that: “That being so, a genuine claim of ownership or hunting rights with respect to the fauna no more constitutes the basis of a defence of claim of right than does a genuine belief by a drug trafficker of ownership of the drugs in which he deals. In the case of the owner or the traditional hunter of the fauna, the defence that what was done was done in the honest exercise of ownership or traditional hunting rights amounts to no more than an assertion that the accused was unaware that the relevant criminal law applied to outlaw the particular exercise of ownership or traditional hunting rights.” [52] This reasoning has been applied in the Court of Appeal; see R v Waine [2006] 1 Qd R 458 at 463 [30]; Stevenson v Yasso [2006] 2 Qd R 150 at 179-180, [100]-[102]. [53] As was said in McDonald v Holeszko, the Court of Appeal has previously decided that a defence under s 22 is not available as a defence to the deliberate clearing of vegetation contrary to statute even if it were assumed that there was sufficient evidence to show that Mr McDonald honestly believed the state of the law permitted him to clear vegetation in the way that he did (at [20]; at [21] the reasoning of Boddice J in Scriven was specifically endorsed). -- 19 of 40 -- 18 [54] In Scriven the offence was carrying out assessable development without an “effective” permit, contrary to s 4.3.1 of the Integrated Planning Act 1997 (Qld). In McDonald v Holeszko, the statute under consideration was the Sustainable Planning Act 2009 (Qld) and the offence under s 578(1) thereof was carrying out assessable development without an “effective” development permit. Both of these cases are authority for the proposition that the similar language in s 163(1) of the Planning Act, referring as it does to “carrying out of assessable development unless all necessary permits are in effect for the development” describes a state of affairs, as found in Scriven and McDonald, where the effect of a development permit, or - in a distinction which probably does not amount to a difference - whether or not a development permit is “in effect” for the development, is a question of law rather than fact such that s 22 of the Code (and, relevantly for present purposes s 24) does not provide a defence. [55] In McDonald, the discussion was concerning a submission that a registered owner of property had a statutory right to the effective use and economic benefits of vegetation on property. Flanagan J (as his Honour then was) noted at [20] that: “This court has, however, previously decided that a defence under s 22 is not available as a defence to the deliberate clearing of vegetation contrary to statute even if it were assumed that there was sufficient evidence to show that Mr McDonald honestly believed the state of the law permitted him to clear vegetation in the way that he did.” Reference was made to Scriven v Sargent (No. 2) with approval, as noted above. [56] The focus at the trial in this case – understandably, given the above line of authorities – was on s 24, not s 22. The appellant submits that an error as to the effect of whatever unseen permit may have existed is one of law, not fact, consistently with the above decisions. On appeal the second respondent does not press reliance on s 24. Both respondents do press s 22(2). More of this below. Conclusion as to s 24 [57] In my conclusion, for the reasons outlined above, s 24 does not assist the respondents. The error made as to the development approval or permit being in effect was one of law, not fact – it was as to the legal effect of a non-existent permit which the respondents had some undetailed belief in the existence of. Moreover, had the situation been such as they are said to have believed, it would not have constituted a -- 20 of 40 -- 19 defence to the charge, because the development approval, had it still been in effect, did not authorise the clearing. Nor was there, in my conclusion, any basis for a reasonable and honest mistake that there was an undetailed “permit in effect” which permitted clearing of native vegetation. Is s 22(2) honest claim of right applicable and exculpatory? (a) Is the offence “with respect to property”? [58] One of the issues between the parties is whether the relevant act done was “with respect to any property” in the terms of s 22(2). It is submitted by the respondents that the offence under consideration here was an offence relating to property for the purposes of s 22(2), including for the reasons set out in Burns v Redland City Council [2025] QDC 15, at [171] to [233]. Section 22(2) was not advanced at trial, no doubt understandably, given the authorities referred to above, but since then the decision in Burns has been delivered, possibly igniting a flame of hope which burns in the hearts of the respondents. [59] In Scriven, the issue was whether the defence applied as an incident of the defendant’s ownership of the land in question; the argument was that one could have such an honest claim of right to clear vegetation merely because one owned the land. Thus, ownership was the source of the claim of right under discussion, and because ownership of the land was central, it may be understandable that the Court of Appeal did not descend into a close analysis of whether the relevant offence was, in those circumstances, an offence “with respect to any property”. The claim in Scriven was one which, being categorised as no more than an incident of ownership, amounted to an error of law and, as s 22 outlines, ignorance of the law is not an excuse. [60] The discussion along these lines would have more relevance if Mr Rice, the owner of the land at the time, had been one of the defendants, but he was not, and would not have, on the evidence, any honest claim of right as owner. He had been otherwise dealt with, and was a witness, who said, inter alia, that he said to Mr Kenward, of the second respondent – whom he understood to be a builder and civil contractor who needed to clear the block to build a building on it – on the 30 th of March 2021: “I said to him that I – I didn’t mind if it did get – got cleared, but I – I sort of, strenuously made the point that I didn’t have any permissions from the Council and that he’d have -- 21 of 40 -- 20 to obtain those.” (T2-49 lines 17-42). This is, of course, long before the existence of any new development approval. The respondents in this case were claiming the rights which might arise pursuant to a prior development approval and as outlined above, might fall into the category of a “lesser” right, which may not exempt it from the force of the authority in Scriven. Does the s 163 offence relate to property, or does it focus on work/activity? [61] The appellant submits that pursuant to the text of s 22(2), the relevant offence must be an “offence relating to property” and the impugned act must have been done “with respect to property”. It is thus said to be insufficient that the offending may be about property or impacting on property. The defence must also relate to property, which is determined not by consideration of the offending conduct, but rather by analysing the text of the offence provisions. Thus, s 163(1) focuses on the carrying out of assessable development without necessary permits in effect. The “development” is operational work, which is defined as “work, other than building work or plumbing or drainage work, in, on, over or under premises that materially affects premises or the use of premises.” [62] Thus, it argued that the nature and focus of the s 163(1) offence is really the carrying out of work and as such it is not “an offence relating to property”. [63] The contrast is drawn with authorities that have applied s 22(2) including Walden v Hensler (1987) 163 CLR 561 where the offence proscribed “the taking or keeping of fauna” which was found by some justices to be an offence relating to property, but this finding was not part of the ratio decidendi of the majority decision; R v Waine which applied s 22(2) to a charge of wilful damage under the Code, being “an act which causes injury to the property of another…”; Stevenson v Yasso where the offence under the Fisheries Act 1994 provided that “a person must not unlawfully… possess fishing apparatus”; Mueller v Vigilante (2007) 215 FLR 58 where s 45 of the Fish Resources Management Act 1994 (WA) provided that “a person must not have in the person’s possession any totally protected fish” (similar to Walden v Hensler and Stevenson v Yasso); and Ahwang & Anor v Slatcher [2021] QDC 40 where the Nature Conservation Act 1992, s 88(2) provided that “a person must not take a protected animal…” (comparable to Walden v Hensler). -- 22 of 40 -- 21 [64] Thus, the submission is that the above cases where s 22(2) did apply to or had a relation to property as a central theme, are unlike the present offence, which really focuses on unpermitted work (the nature of the respondent’s action) rather than a proprietary right. It is helpful to canvass some of the relevant authorities as follows. Olsen v Grain Sorghum Marketing Board; ex parte Olsen [1962] Qd R 580 [65] Olsen was a case where the creative appellants transported grain across State borders for the purpose of trying to avoid a penalty under State legislation, resorting to s 92 of the Commonwealth Constitution. They relied on legal advice. The Full Court held that this was not an offence with respect to any property within the meaning of s 22. Mansfield CJ observed that the offence charged was one of buying a commodity from someone not permitted to sell it, and this was not an offence relating to property (even though grain is clearly property). The claim did not relate to particular property, rather a claim they could buy any sorghum from any person because of what amounted to a legal error; this was not an honest claim of right within s 22 (at page a585). In my view, the Full Court’s analysis focused on the nature of the appellant’s action taken in exercise of the purported claim, namely buying a commodity They were not acting in exercise of a particular proprietary right and thus not protected by s 22. R v Waine [2006] 1 Qd R 458 [66] Waine was a case of wilful damage – spray painting some letters (“AUA” standing for “Aboriginal University of Australia”) on buildings on Fraser Island about a claim arising from possible native title rights. Previous claims for native title in respect of parts of Fraser Island by an associate of a co-defendant, Mr Sempf, had been struck out by relevant courts, however Ms Waine gave evidence that Mr Sempf had led her to believe that he had valid claims. [67] At [23] Keane JA observed that an erroneous belief that what one is doing is lawful is a mere mistake of law and no defence, referring to Olsen at page 589 and Ostrowski v Palmer (2004) 218 CLR 493 at 501, 508, 528-529. The passage from the judgement of Hanger J in Olsen includes the following: “Section 22, after stating that ignorance of the law is no excuse, does not proceed to say that ignorance of the law is an excuse in the case of an offence relating to property for an act done with respect to property. It refers to an act -- 23 of 40 -- 22 done in the exercise of an honest claim of right and without intention to defraud.” Keane JA continued, saying that what is required is an honest claim by the accused to an entitlement in, or with respect to, property (referring to Walden). [68] Thus, if a person simply has an erroneous belief that what they were doing was lawful, this is a mistake of law and no defence. The appellant says this was the position of the respondents in this case; a mere error as to the “effect of” a rumoured permit or approval was a mistake of law. The offence focuses on what they were doing, not what their honest claim of property rights were. This is underlined, it seems to me, by the concluding words of s 22(2) “and without intention to defraud”; this reinforces the proprietary nature of the claim of right. The appellant submits that neither respondent is asserting an honest claim of a proprietary right in this case. [69] Keane JA continued at pages 462-3: [25] It has been said that the clearest example of the operation of s. 22(2) of the Criminal Code is the case where a person does an act with respect to property in the honest but mistaken belief that he or she is the owner of the property. But it is also clearly established on the authorities that an honest claim of right may be made, not only as a claim to a proprietary or possessory right in property, but also as a claim to be entitled to act in respect of property. What is important is the honest belief that one is legally entitled to do to the property that which one is doing. That belief as to entitlement may come equally from the consent of the owner, or from a person believed to be the owner, as well as from a mistaken belief as to one’s own title. (I pause to note that these examples all refer to belief as to proprietary rights). [26] It would follow, it seems to me, that one who damages property in the mistaken belief that one is authorised to do so by the owner may honestly claim to be entitled to deal with the property in that way so as to have a defence under the subsection. In this way, the subsection would, for example, afford a defence to a house painter who is requested to paint a house pursuant to a contract with a person who mistakenly represents himself or herself to be the owner of the house. The painter may honestly claim to act with respect to the house pursuant to the right conferred in that regard by the person honestly believed to be the true owner. In my respectful opinion, in the present case, the position of the appellant is no different. [27] In the present case, the issue was whether the appellant, as a person dealing with property in a manner authorised by Aboriginal persons asserting ownership of the cabins, could raise a defence under s. 22(2) of the Criminal Code by claiming to deal with the huts in accordance with the consent of those persons. In my respectful opinion, in such a case, the accused falls within the dictum of Gibbs J. in R. v. Pollard [1962] Q.W.N. 13 at 29: -- 24 of 40 -- 23 “An accused person acts in the exercise of an honest claim of right (in respect of the property the subject of the charge) if he honestly believes himself to be entitled to do what he is doing [in relation to that property].” The appellant refers to this passage, submitting that it confirms that any honest claim of right must relate to a proprietary right recognised by the civil law. Thus Ms Waine, importantly, said that she was told relevant things by persons asserting ownership, which is different from the present case. Walden v Hensler (1987) 163 CLR 561 [70] The honest claim of right was analysed by Deane J in Walden, including at page 580: “an honest belief of a special entitlement to do the act with respect to the property, such belief of ownership, will only constitute a defence under s 22 of the Code if that entitlement would, if well-founded, preclude what was done from constituting breach of the relevant criminal law which an accused is assumed to know… in other words it is not to the point to establish an honest belief of a special relationship with property which, even if it existed, would not constitute an answer to the offence charged.” [71] This last passage may be important in the present analysis. Deane J was analysing the honest belief in the context, consistently with s 22(2), of a special relationship with property. This may well be quite different from a belief as to the effectiveness of a permit. The respondents don’t claim any particular special relationship with the subject land or indeed the trees or other vegetation, unlike the situation in Burns where there was a connection with the land on the part of Mr Burns, an indigenous Quandamooka man, including historical practices which he considered to be a native title right; and there was a Determination of native title concerning the subject land, which admittedly Mr Burns did not own. [72] The appellant also refers to the observations of Dawson J in Walden, whereby the claim of right is not a claim to freedom to act in a particular manner or to the absence of prohibition. Rather, it is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. This is necessarily a claim to a private right arising under civil law (at 592-3). This was followed by Keane JA Waine, as outlined above, confirming that any honest claim of right must relate to a proprietary right recognised by the civil law. -- 25 of 40 -- 24 [73] This is not, so argues the appellant, what is under examination in the present case. Thus, unpermitted vegetation clearing by non-owners asserting no proprietary right concurrent with no allegation of justification by permission of the owner or apparent owner (where Mr Rice had made it clear he had no permission from the Council), but rather: (a) a wrongful belief as to the existence of a non-existent development permit, or (b) a mistaken belief about the activities that may lawfully be carried out under a lapsed development permit or approval, or (c) a mistaken belief as to the effect of the undefined and unexplained phrase “permit in force” (ex. 20D p5, see [45] above) is not an activity done in the exercise of an honest claim of (proprietary) right. Rather, s 163(1) does not have any relationship with proprietary rights attending vegetation. Instead, as in Walden, the section establishes a blanket prohibition on vegetation clearing, that is work or an activity, without a relevant approval. The focus is on unpermitted work rather than proprietary rights. A comparison can be made with Olsen where the focus of the charge was the activity of buying a commodity rather than a particular propriety right. To repeat the words of Keane JA in Waine, an erroneous belief that what one is doing is lawful is a mere mistake of law and no defence (emphasis added). Burns v Redland City Council [2025] QDC 15 [74] The respondents understandably rely upon the reasoning in Burns to argue that the s 163 offence, in particular the offence as here charged, does relate to property such that s 22(2) is engaged. The judgement canvasses much of the discussion outlined above. It considered Walden in some detail. [75] Mr Burns was charged with a similar offence, in that contrary to s 162 of the Planning Act 2016 he had cleared native vegetation on prescribed land. Mr Burns is a member of the Quandamooka people whose traditional lands include North Stradbroke Island. In mid-2020 he cleared some land on the island and thus was charged by the Redland City Council with having conducted prohibited development in breach of s 162. Mr Burns argued in his defence that the clearing was lawful under the Native Title Determination in Delaney on behalf of the Quandamooka People v State of -- 26 of 40 -- 25 Queensland [2011] FCA 741, which exempted him from the charge under s 162. Secondly, he said that the clearing was a traditional Aboriginal cultural activity and therefore within an express exemption for such activity under the Planning Act. Thirdly, he argued that the evidence raised the defence provided by s 22(2) of the Criminal Code, in that he honestly believed that he was entitled by the determination or under the cultural activity exemption to clear the land. That is, he claimed an honest claim of right. He said that he was “within his rights”, he had 40 to 60 thousand years’ connection to that country, he had native title, and it was “native title land”, but conceded if someone owns the freehold property, it’s theirs (at [126]-[128]). [76] On appeal it was determined that the clearing was not authorised by the Determination or the cultural activity exemption but that the evidence at trial did raise a defence under s 22(2). [77] Mr Burns had cleared a large area on Stradbroke Island, of 2,400 m 2 on land owned by the State Government through SEQ Water as trustee. The vegetation which was cleared was classified under the Vegetation Management Act 1999 as remnant vegetation and as essential habitat. [78] Relevantly for present purposes, the analysis of whether an honest claim of right arose is set out at paragraphs [171]-[233]. On the issue of whether the s 162 offence was an offence relating to property for the purposes of s 22(2) the stance of the prosecution, as in this case, was that the offence is one of carrying out prohibited development, rather than any act in relation to property. Although the Council accepted that vegetation is property within the meaning of that word in the Code, focus must be given to the words of the offence creating provision. [79] Analysis was carried out of Walden along similar lines to those set out above. Mr Walden failed in his appeal against conviction - the majority dismissed it, being Justices Brennan, Deane, and Dawson JJ, Toohey and Gaudron JJ dissenting. Justice Brennan concluded that the relevant offence was not one relating to property. Justice Deane, although concurring in the result, came to the opposite conclusion on whether there was an offence relating to property, contending for a broader construction of the phrase “an offence relating to property” in s 22. Dawson J did not advert to whether the offence was one relating to property, but rather decided the appeal on the question of whether Mr Walden’s belief could amount to an honest claim of right within the -- 27 of 40 -- 26 scope of s 24, which it did not. His Honour found that s 22(2) was inapplicable where there was a prohibition irrespective of any proprietary or lesser right, embracing the reasoning in Pearce v Paskov [1968] WAR 66 and holding that Mr Walden’s ignorance of the prohibition was mere ignorance of the law affording no excuse (at pages 593-4). [80] Justice Toohey dissented in the result but did agree with Justice Deane’s conclusion as to an offence relating to property. Justice Gaudron referred to the narrower interpretation of the phrase in Pearce v Paskov (a crayfish case) and a broader view was taken in the PNG decision of R v Hobart Magalu [1974] PNGLR 188. Her Honour also referred to Olsen v Grain Sorghum Marketing Board; ex- parte Olsen mentioned above. [81] In Burns, the analysis was that two judges (Deane and Toohey JJ) concluded that the offence was one relating to property on a broader construction of that phrase, however they came to different conclusions on the other element. It may be, as mentioned below, that the judgment of Gaudron J can be added to arguably support the proposition that the interpretation in Pearce v Paskov is too narrow and that the fauna offence in Walden was one relating to property. [82] This was considered in the Western Australian Court of Appeal in Molina v Zurich [2001] WASCA 337. The conclusion was that the narrower interpretation from Pearce had been overruled by Walden, with reference to the passages from Deane, Toohey and Gaudron JJ (even though Toohey and Gaudron JJ were in dissent). Thus, a broad construction of “relating to property” should be adopted. [83] This was adopted by the President of the Queensland Court of Appeal in Stevenson v Yasso. That case involved, as set out above, an allegation of unlawful possession of commercial fishing apparatus, namely a net, without the relevant authority. Mr Stevenson was relying on an exemption in the Fisheries Act for Aboriginal traditional resources, thus there were some similarities to Burns, not present here. [84] McMurdo P considered Walden and Molina and adopted the analysis of Walden in Molina, concluding that although the law as to s 22 may not be entirely settled (a not very reassuring understatement), the issue of Mr Yasso’s entitlement to possess the net in the exercise of an honest claim of right under s 22 was raised on the evidence. -- 28 of 40 -- 27 During this discussion (at [66]), her Honour noted the remarks of Olsson AUJ in Palmer v Ostrowski (2002) 26 W.A.R. 562, relying on Molina, that s 22 is to be accorded a liberal interpretation and is applicable to any situation in which an act is done with respect to property and without intent to defraud. Palmer v Ostrowski was overturned in the High Court on a different basis and these observations were not the subject of that appeal. [85] McPherson JA reached the conclusion that the offence under the Fisheries Act was one relating to property, relying on the broad definition of property in s 1 of the Code. However, as to s 22(2), his Honour disagreed with the reasoning in Molina which had been approved by McMurdo P of – as described in Burns at [193] – marshalling majority and dissenting judgments to assemble a putative majority on the construction of “relating to property” generally. His Honour considered this to not be a legitimate course to follow – page 180, paragraph [103] - and referred to Federation Insurance Ltd v Wasson (1987) 163 CLR 303 at 314 where Mason CJ, Wilson, Dawson and Toohey JJ agreed in saying: “Certainly, it would not be proper to seek to extract a binding authority from an opinion expressed in a dissenting judgment.” There were similar observations in Garcia v National Australia Bank Limited (1998) 194 CLR 395 at 417 per Kirby J. His Honour noted that it is true that a dissenting judgment may “deserve respectful consideration”; Jones v Bartlett (2000) 205 CLR 166 at 225. However, his Honour observed that in Walden the majority was unanimous in deciding, unlike the minority, that s 22(2) afforded the appellant no exemption for the offence of taking or keeping fauna. His Honour at [104] did not consider that the decision or the reasoning in Molina called for a different result in Stevenson. The offence under the Act and regulation of possessing a proscribed net was proved beyond reasonable doubt and an entitlement under s 14(1) of the Fisheries Act to “take home” or “catch fish” under Aboriginal tradition was no answer to the charge. [86] The third member of the Court, Fryberg J, expressly refused to comment on the possible operation of s 22 of the Code (at [156]) having found that Mr Yasso had a defence under s 14 of the Fisheries Act. Thus, there was no majority decision in Stevenson as to the operation of s 22. -- 29 of 40 -- 28 [87] In Burns the approach was that on the “relating to property” issue minority decisions should be given respectful consideration and taken with Deane J’s position such as to render Stevenson useful authority on how to approach the issue. The conclusion was that the offence in Burns was an offence relating to property. Burns was, however, like Stevenson, a case where Aboriginal people were claiming traditional rights with a basis in legislation, such as the Native Title Act 1993 (Cth) and the Fisheries Act, which post-dated Walden. Is Burns of persuasive value or is it distinguishable? [88] The decision of Burns, being at the same level of the judicial hierarchy, is not binding upon this Court, but is of persuasive value if it is not distinguishable. It is not clear to me that the reasoning in Burns, focusing as it does on the position of a person asserting an honest belief that he had native title/traditional practices type rights of connection with the land (as set out at [75] above) – albeit those claims were not successful apart from s 22(2) – has particular application in the present factually different case. The rights asserted by Mr Burns may be seen as proprietary in nature considering their claimed source and nature and the fact that he wanted to build a house for his daughter, and it is against this background that s 22(2) was considered. The present respondents are in a very different position, in my view – their honest claim of right is in no sense proprietary, rather an error of law concerning a non- existent MCU approval or an unspecified and non-existent “permit in effect”. [89] If the reasoning in Burns is applicable to the present case – which, as outlined above, I consider doubtful – I find myself in respectful disagreement with its conclusion, which I was told at the hearing of this appeal is presently subject to appeal to the Court of Appeal. As noted, the Court of Appeal in Queensland has concluded – and in my respectful view, clearly so - in Scriven and McDonald that s 22(2) does not give rise to a claim of right for unlawful clearing under the Planning Act. True it is that the nature of the claims of right in each of those cases were different from the one in Burns. It is not clear to me whether this is a sufficient distinction to distinguish Scriven and McDonald from the situation in Burns, although I note that in Burns at [229] it is said that this is so, such that Scriven and McDonald do not apply. The conclusion at [233] includes that the claim of right would not succeed absent the “cultural activity exemption”, which appears to have been the preservation of certain -- 30 of 40 -- 29 native title rights and interests, including a cultural activity, referred to in s 211 of the Native Title Act 1993 (Cth). This is of course absent from the present case. Thus there were clearly points where distinctions could be drawn from Scriven and McDonald. The merits of this will presumably be examined in the Court of Appeal. [90] However, in my view this Court, in the circumstances of the present case, is bound by Scriven and McDonald and, further, the claims of right asserted by the respondents in the present case are if anything more tenuous than those in Scriven, McDonald or Burns. There is no type of proprietary right alleged by either of the respondents, something which, as outlined above, is important in the analysis. The case may be different if Mr Rice had remained charged as a defendant, he being the owner of the property, however this is simply not such a case. Of course, given the reasoning in Scriven and McDonald, even Mr Rice would have had difficulty defending the charge. I consider the claim of right in the present case, being non-proprietary, to be even more challenging for the respondents to bring themselves within the relevant subparagraph of s 22(2). Further, the actual nature of the claim of right is, as examined above, somewhat vague and fluid, as is demonstrated by the terms in which it was described by the magistrate in her Honour’s reasons. [91] I note that in Burns at [191] it was said that the Queensland Court of Appeal adopted the same interpretation of Pearce and approved the approach in Molina in Stevenson v Yasso. As outlined above, I respectfully disagree. McMurdo P did adopt the Molina approach (at [65]-[67]), while noting, as mentioned above, that the law as to s 22 may not be entirely settled; MacPherson JA did not approve Molina and expressly adopted the observations of the High Court disapproving attempts to seek a binding authority from a dissenting judgement (at [103]), and Fryberg J refused to comment (at [156]). [92] The Burns decision does acknowledge the judgement of MacPherson JA at [193] and notes, as previously observed, that there was no binding authority on the proper construction of “relating to property” in the majority judgements in Walden. The issue is not straightforward and depends partly on an analysis of several authorities (Burns at [196] mentions an assessment of the “weight of authority”), turning on differing facts, where the High Court has not reached a majority position and the former President of the Court of Appeal has noted the position may not be settled. Thus it is -- 31 of 40 -- 30 perhaps obviously a matter upon which reasonable minds may differ, and in which the factual setting may be important or even decisive. [93] The second respondent submits that in Scriven and McDonald the applicability of s 22(2) to vegetation clearing was assumed, however I do not accept that submission. I note that the appearance of such an assumption was mentioned in Burns at [201]. It is unproductive to further repeat the passages quoted and analysed above, in which context s 22(2) is not, in my conclusion, applicable. Conclusion as to (a), whether the present offence is one “with respect to property” such as to engage s 22(2) of the Code [94] For the reasons set out above, my conclusion is that the s 163 offence under discussion, particularly in its factual matrix, is not an offence with respect to property, and s 22(2) is not engaged. However, for completeness and particularly given that, as has been previously said, the law in this area is not settled, it is necessary to examine whether, if it were applicable, it would exculpate the respondents. (b) If s 22(2) were engaged, would it exculpate the respondents in the circumstances of the present case? [95] If s 22(2) were available to the respondents, in my view it is not factually made out. As outlined above, the error made as to the development approval or permit being in effect was one of law, not fact – it was as to the legal effect of a non-existent permit which the respondents had some undetailed belief in the existence of. Moreover, had the state of affairs been such as they are said to have believed, it would not have constituted a defence to the charge, because the MCU approval, had it still been in effect, did not authorise the clearing. Nor was there, in my conclusion, any basis for an honest claim of right based on an undetailed “permit in effect” which permitted clearing of native vegetation. These matters are detailed below. First Respondent’s honest claim of right [96] Some of the relevant factual features are set out in the discussion of the s 24 issue, at [42]-[45] above and it is unnecessary to repeat them. I should first note, however that it is not quite clear to me what the respondents’ honest claim of right is. The honest and reasonable belief was found by the magistrate in terms set out at [42] above, that -- 32 of 40 -- 31 the first respondent believed “that there was an approval of permit in place”. I am not sure what that means, and in saying this I am not seeking to be critical of her Honour, who was considering the s 24 question. It is likely to be a reference to the Enquiry Tool result. In any case, I am now asked to consider a s 22(2) honest claim of (proprietary) right, of which neither respondent gave any direct evidence, but which is said to be inferred from several factual sources and seems, with respect, to be a vague and moveable feast. It seems to be based on some information about the previous MCU or possibly the Enquiry Tool. [97] In essence, the appellant refers to several matters: (a) There were no development approvals ever given that would have authorised the impugned clearing (CEO Certificate, Exhibit 3, para 4); (b) The only development approval which had previously existed, for three months from October 2007, about 13.5 years earlier, was for a Material Change of Use (MCU) for a general industry shed but which did not authorise operational work such as clearing (“development” includes operational work such as clearing, see Planning Act 2016 Schedule 2). Thus any mistake as to its continuation in effect (of which state of mind there does not seem to be any evidence) would not avail the respondents; (c) As regards the first respondent, the Council investigator Mr Halloran spoke to an employee or subcontractor thereof, named Jason, on site immediately after the clearing. Jason gave Mr Halloran the document which was a Stormwater Management Plan which he relied on, part of the 2007 approval which said nothing about clearing (Exhibit 12E, p13; Exhibit 9, last photograph); (d) Mr Child of the first respondent did not inform Mr Halloran of any development approvals other than the 2007 one: T3-29 line 6 to T3-30 line 3. Mr Child subsequently emailed documents to Mr Halloran including an extract of a printout of the development Enquiry Tool referred to at [45] above. Exhibit 12E is an email of 12 April from Mr Kenward (of the second respondent) to Mr Child attaching documents including a copy of the Enquiry Tool. This does not seem to have an operative date displayed but it seems to assert that there was an undetailed “permit in force” (page 5 thereof). It is accepted this enquiry result was in force, i.e. visible on the Council website as at the date of the trial -- 33 of 40 -- 32 (Exhibit 14). Its meaning is unclear and unexplained. Councils can obviously “permit” a myriad of things both in planning and other areas and no detail is given; (e) There is no evidence that prior to the clearing Mr Child had been given a copy of the 2007 MCU approval or evidence of its terms; (f) The email of 12 April referred to the “approved plan” but only attached one page thereof being a Stormwater Management Plan (Exhibit 12E, page 13) which, as mentioned above, said nothing to authorise clearing of vegetation; (g) Mr Child, who had been involved in clearing work for some time, described his ordinary practice of relying on the preparatory work of reliable clients for whom he regularly worked, however in contrast this was the first time he had worked with Mr Kenward or the second respondent (Exhibit 11E, page 3). [98] Thus, any error by the first respondent – which, as I have outlined is in vague terms and not clearly articulated – was based on the vague commentary of Mr Kenward about a non-existent approval, coupled with a 2007 Stormwater Management Plan which did not speak of clearing work, and an unspecified “permit in effect”. The appellant simply submits that this does not amount to evidence of an honest claim of right sufficient for s 22(2) to exculpate the first respondent. In my conclusion this is correct. Second Respondent’s honest claim of right [99] As to the evidentiary basis for the second respondent’s honest claim of right, there was, unlike Mr Child, no interview between Council investigators and Mr Kenward, rather some conversations between he and Mr Rice (admissible if containing statements against interest) and some emails. Thus, the appellant points out that the evidence to base Mr Kenward’s knowledge founding an honest claim of right pre- clearing is scant. The appellant refers to the matters at [97] (a), (b), (d) and (f) above. [100] Further, as mentioned above, Mr Rice cautioned Mr Kenward before the clearing, saying that he strenuously made the point that he didn’t have any permissions from the council and that he, Kenward, would have to obtain them: T2-49 lines 7-42. There does not seem to be any suggestion in the evidence that he did so. -- 34 of 40 -- 33 [101] The pre-clearing email from Mr Kenward to David Child of the first respondent was copied to several people including Mr Rice on 12 April 2021 (Exhibit 20D in the second respondent’s proceeding) asking Mr Child to proceed with the attached quote for tree removal, i.e., it procured the clearing which forms the offence. It did not refer to the MCU or any other approval apart from the Stormwater Management Plan from 2007 which, as already mentioned, does not authorise clearing or give any suggestion that it does. It includes at page 3 reference to the Overlays including 2.01, the Primary vegetation management area, covering 81.1% of the site. At pages 4 and 5 it indicates that for a General Industry Shed there is an unspecified “permit in force”, as mentioned above, in the context of an MCU in 2007. On page 7 there is more detail of the Overlays including 2.01 and 2.00, the Biodiversity areas trigger – Primary Vegetation Management Area. This seems to be the material which, inferentially, the second defendant bases its honest claim of right on. Page 10 is an email from Mr Rice to Mr Kenward of 9 April, saying the Mr Rice was “Happy to proceed” on the quote. This was likely the “land owners consent” referred to in Mr Kenward’s 12 April email, page 1 of Exhibit 20D. [102] Mr Kenward emailed Mr Rice after the clearing (Exhibit 21D – page 1 thereof is an email dated 19 April 2021) passing on a referral agency response forming part of the 2007 approval. The terms of the email did not refer to an honest claim of right, rather saying somewhat obscurely: “This is document in reference to your MCU Has nothing to do with your D/A”. What this means is not explained. One interpretation is that the previous MCU is separate from a possibly more contemporary (non-existent, at that stage) development approval, but this is speculative. The referral agency response, in any case, goes no further than an assessment of the proposed development against an internal State Government departmental policy concerning the Vegetation Management Act 1999. [103] This appears in Exhibit 5, attachment pages 14-16 as well as Exhibit 21D. At paragraph 4.6.1 thereof there is recorded a factual finding that upon a field inspection on 6 August 2007 the dominant species is Corymbia citriadora, or lemon-scented gum, mentioned at [10] above – a native species endemic to the area. Thus the information in Exhibit 21D, which apparently came to the attention of Mr Kenward -- 35 of 40 -- 34 at some stage – it is unclear when, but it was by 19 April - indicated the presence of native vegetation. There is an inference open that Mr Kenward may have received the above material at the same time as the Exhibit 20D material – the Exhibit 20D material included the Stormwater Management Plan, which was part of the “Development Permit” documents in Exhibit 5 including the referral agency response – which would make the second respondent’s position more difficult, but I could not draw that inference beyond reasonable doubt. [104] In any case, the referral agency response is not an approval or permit for clearing; to the contrary, page 1 of the response requires conditions on any approval by an Assessment Manager that any subsequent remnant vegetation clearing is to be applied for as operational works that is the clearing of native vegetation, unless exempt under Schedule 8, part 1, table 4 of the Integrated Planning Act 1997. None of the possible exemptions in table 4 are suggested to apply. Thus on the long-expired approval, clearing was not permitted and there had been a finding of native vegetation present. [105] The Vegetation Management Act under which the response was given understandably provides for vegetation management, declarations by the chief executive of such things as nature conservation value or land degradation for stated areas, clearing for special indigenous purposes, and accepted development clearing codes. Section 19Q provides that where a clearing code applies, the activity is accepted development only if and to the extent that the activity complies with the code. Thus, it is a further restriction on development, not an alternative route thereto. This is made clear by the terms of the Response set out above. Even apart from the issue of the MCU approval having lapsed more than 13 years earlier, there is nothing in the Response which could sensibly found an honest claim of right – rather, to the contrary, there was no evidence of clearing approval and there was evidence of native vegetation previously present. In any case there is no evidence of such a state of mind being held by Mr Kenward or anyone else on behalf of the second respondent at any material time. [106] The appellant also points to Condition 5 of the 2007 MCU approval, which if the respondents had been aware of it and it had still been in force, explicitly did not authorise any works to be carried out on the site. No such works were to be carried out absent a Development Permit for the approved use (which is not suggested to exist or have existed) or if the use were self assessable, which this operational work -- 36 of 40 -- 35 was not. Thus, again, the MCU approval had lapsed more than 13 years earlier; if not, it would not have authorised the clearing in any case. [107] The second respondent argues that an inference can be drawn that after Mr Rice told Mr Kenward on 30 March that he personally didn’t mind if the land was cleared, but there were no permits in place, Mr Kenward (a) undertook his own investigations, including through the Enquiry Tool, which said that there was a “permit in force” and (b) that this meant that the clearing was authorised. While the first part of the inference may well be available, the second part in my view ventures into speculation. It seems to me that it would be well known that unlimited unpermitted clearing of native vegetation was unlawful – Mr Kenward’s conversation with Mr Rice confirms as much. The phrase “permit in force” in the Enquiry Tool result would in my view do no more than prompt proper enquiries as to what permits may have been in force. The balance of Exhibit 21D does not assist the second respondent, see paragraph [103]-[104] above. In my view the contended-for inference cannot be drawn in favour of the second respondent. [108] There is little evidence of Mr Kenward’s state of mind when he procured Mr Child to carry out the clearing (other than he wanted it cleared for construction), and thus, so argues the appellant, little evidence to support an honest claim of right on the part of the second respondent. Conclusion re: evidentiary support for s 22(2) claim [109] In my conclusion the appellant’s submission is correct. There is simply no evidence sufficient to support an honest claim of right on behalf of the second defendant, and the reliance on s 22(2) to exculpate each respondent fails, even if the offence were within the section. Ground 4 - the party provisions for the second respondent [110] The prosecution case against the second respondent was that it was a “procurer” pursuant to s 7(1)(d) of the Criminal Code which provides essentially that any person who counsels or procures another person to commit the offence is deemed to have taken part in committing it and be guilty of the offence. Apart from the Exhibits canvassed above, the evidence included that Mr Kenward had told Mr Rice that the second respondent was a builder and civil contractor that was involved in the -- 37 of 40 -- 36 development of the site, and he needed to clear the block to build a building on it (T2- 49 lines 20-35). Knowledge of particulars [111] The trial magistrate had some doubts that the prosecution had proven the second respondent’s knowledge of some of the particulars of the complaint. Absent this issue, it is clear on the above analysis that the first respondent was guilty of the unlawful clearing; that neither respondent had resort to either s 24 or s 22(2) of the Code; and that the first respondent should be found guilty of the offence. It is also clear on the evidence that the second respondent retained (i.e. procured) the first respondent to do the clearing as part of the preparatory work for construction. [112] The trial magistrate considered that the prosecution had to, and failed to, show that the second respondent had actual knowledge of some complaint particulars, including that the cleared vegetation was native vegetation; that the clearing comprised relevant “operational works”; and that the operational work constituted assessable development. The second respondent advances these findings as being correct and thus it is not proven to be a party to the offence. [113] The appellant argues that the magistrate’s conclusion on this point is an error. In effect, the clearing of native vegetation without an effective permit should be regarded as an offence of strict liability. Reference is made to Director-General of the Dept of Land and Water Conservation v Greentree (2003) 131 LGERA 234, concerning an offence against s 21(2) of the Native Vegetation Conservation Act 1997 (NSW). The New South Wales Court of Criminal Appeal said at [74]: “The focus of these objects is the protection, maintenance and enhancement of native vegetation. The Act is intended to prevent activities that destroy or harm native vegetation and to promote activities that enhance it. Such objects suggest that sections like s 21(2) which are included to achieve those objects should be read, in the absence of language to contrary effect, as imposing strict liability.” [114] The purposes of the Planning Act 2016 (Qld) are broader but similar. They include ecological sustainability. There is, so argues the appellant, nothing in the Act to suggest that the concept of mens rea is an element of an offence against s 163. If knowledge or recklessness were intended to be required, the word “wilfully” would -- 38 of 40 -- 37 have been expected to be inserted. This is not the case. The case of Scriven referred to above refers to clearing as an offence of general application. [115] In Giorgianni v The Queen (1985) 156 CLR 473 at 487-488 the High Court said that: “no-one may be convicted of aiding, abetting, counselling or procuring the commission of an offence unless, knowing all the essential facts which made what was done a crime, he intentionally aided, abetted, counselled or procured the acts of the principal offender”. (emphasis added) [116] Knowledge of the possibility, or even probability, of the essential elements of the principal offence is not enough; Giorgianni v The Queen at 506 to 507. It is necessary to identify the relevant knowledge or intention for liability as a party: R v Thrupp [2024] QCA 134 at [149]. In this case, no intention is an element of the charge of unlawful clearing and in such a case all the procurer need know is that the conduct constituting the offence is occurring or will occur; compare R v Licciardello (2018) 3 Qd R 206 at 217, paragraph [30]. [117] Here, the essential facts were known – that there would be clearing of vegetation. The appellant submits this is sufficient. If this seems a low bar, it is important to bear in mind that the second defendant did have recourse to s 24 – if there was an honest and reasonable mistake as to relevant facts, the defence would apply. Moreover, s 22(1) is clear – ignorance of the law is no excuse. The various particulars which the magistrate found to be unproven to have been in the second respondent’s knowledge are said to be all matters of law, not fact. [118] I am not sure that this is wholly correct as regards knowledge of the presence of native vegetation (the categorisation of vegetation in this way may be a mixed question of law and fact), however in my conclusion the inference is inescapable, as outlined above, that the vegetation which clearly existed – the quote was obviously for clearing something – included, in the circumstances, some native vegetation and that the second defendant knew this. The proposition that a business involved in a large construction project on this site (I was told at the hearing that the purchase price of the land was over $2m) and during this organised pre-construction clearing including accepting a quote (for $41,000) did so without (a) looking at the site and (b) knowing in any case that native vegetation would be inevitably present is so unlikely that it needs only to be stated to be rejected. This is particularly so given the warning of Mr Rice. -- 39 of 40 -- 38 [119] The appellant succeeds on this ground. The result is that the second respondent is liable as a party to the offence. Conclusion [120] In the circumstances outlined above my conclusions are that the appeals should be allowed on all of the grounds advanced. I am asked to exercise the jurisdiction of conducting a re-hearing on the evidence. My findings consistent with the determination of the grounds are that the complainant did prove beyond reasonable doubt that native vegetation was present on the site pre-clearing; the area of clearing exceeded 150 square metres (the site was about 25,000 square metres); the clearing did constitute assessable development under the Scheme and there was not an effective development permit in place. Thus the first respondent is found beyond reasonable doubt to have committed the offence in circumstances where neither s 24 nor s 22(2) of the Code operate to exculpate it; I am also satisfied to the required standard that the second respondent is a party to the offence as a procurer, s 7(1)(d) of the Code, and similarly is not aided by s 24 or s 22(2). Both respondents are found guilty of the offence. I will hear the parties as to penalty. -- 40 of 40 --