Drynan v Department of Natural Resources, Mines and Energy [2025] QCAT 142

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Drynan v Department of Natural Resources, Mines and Energy [2025] QCAT 142 PARTIES: ROSS GREGORY DRYNAN (applicant) v DEPARTMENT OF NATURAL RESOURCES, MINES AND ENERGY (respondent) APPLICATION NO: GAR032-21 MATTER TYPE: General administrative review matters DELIVERED ON: 31 March 2025 HEARING DATE: 8 November 2024 HEARD AT: Brisbane DECISION OF: Member Scott-Mackenzie ORDERS: The internal review decision of the respondent made 4 December 2020 confirming a decision made by the respondent on 30 September 2020 on an application by the applicant under section 20C of the Vegetation Management Act 1999 (Qld) for a property map of assessable vegetation for part of four parcels of land: (a) lot 1 on WD 2104 located to the north of Rathdowney in South East Queensland and shown in figure 1 in the joint statement of agreed facts filed in the Tribunal by the parties on 1 April 2022 (‘joint statement of agreed facts’); and (b) lot 1 on RP 114424 and lots 21 and 22 on RP 47247 located to the east of Rathdowney and shown in figure 1 in the joint statement of agreed facts, (‘applicant’s land’) be set aside. The respondent, pursuant to section 20C of the Vegetation Management Act, make a property map of assessable vegetation for the following parts of the applicant’s land: (a) for lot 1 on WD 2104, the areas containing non-remnant and high value regrowth vegetation identified in figure 13 in the -- 1 of 34 -- 2 statement of evidence by Daniel Thomas Kelman filed in the Tribunal by the respondent on 26 August 2022 (‘Mr Kelman’s statement of evidence’) with those areas to be identified on the property map of assessable vegetation as category X area and category C area respectively; and (b) for lot 1 on RP 114424 and lots 21 and 22 on RP 47247, the areas containing non-remnant and high value regrowth vegetation identified in figure 15 in Mr Kelman’s statement of evidence with those areas to be identified on the property map of assessable vegetation as category X area and category C area respectively. There be no order in relation to costs. CATCHWORDS: ENVIRONMENT AND PLANNING – TREES AND VEGETATION – NATIVE VEGETATION – where applicant applied under section 20C of the Vegetation Management Act 1999 (Qld) (‘VM Act’) for a property map of assessable vegetation (‘PMAV’) over part of his land – where the respondent made a draft PMAV offer to the applicant – where the applicant rejected the draft PMAV offer – where the respondent made a second draft PMAV offer to the applicant – where the applicant rejected the second draft PMAV offer – where the respondent certified a PMAV – where the applicant applied under section 63 of the VM Act for an internal review of the decision – where the respondent confirmed the decision – where the respondent’s expert witnesses subsequently visited the applicant’s land and prepared expert reports – whether the application should be assessed by the Tribunal on the material before the original decision-maker or on the material now before the Tribunal – what is the correct and preferable decision Migration Act 1958 (Cth), s 24, s 303 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 24 Vegetation Management Act 1999 (Qld), s 3, s 10, s 20AKA, s 20AL, s 20AM, s 20AN, s 20ANA, s 20AO, s 20BA, s 20C, s 20CA, s 63, s 63B Davis v Department of Natural Resources and Mines [2015] QCAT 301 Esber v The Commonwealth of Australia (1992) 174 CLR 430 Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 Harris v Caladine (1991) 172 CLR 84 -- 2 of 34 -- 3 Knuth & Ors v Department of Natural Resources, Mines and Energy [2020] QCAT 156 Knuth & Ors v Department of Natural Resources, Mines and Energy [2022] QCATA 26 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 160 CLR 24; [1986] HCA 40 Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 Shi v Migration Agents Registration Authority [2008] HCA 31 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Dr C J McGrath of Counsel, instructed by the Department of Natural Resources, Mines, Manufacturing, Regional and Rural Development REASONS FOR DECISION Application to review [1] On 8 January 2021, the applicant (‘Mr Drynan’) made application to the Tribunal to review a decision of the respondent (‘Department’) made 4 December 2020 (‘internal review decision’) confirming a decision made by the Department on 30 September 2020 (‘original decision’) on an application by Mr Drynan under section 20C of the Vegetation Management Act 1999 (Qld) (‘VM Act’) for a property map of assessable vegetation (‘PMAV’) for part of four parcels of land: (a) lot 1 on WD 2104 located to the north of Rathdowney in South East Queensland and shown in figure 1 in the joint statement of agreed facts filed in the Tribunal by the parties on 1 April 20221 (‘joint statement of agreed facts’) and set out in paragraph 11 of these reasons for decision; and (b) lot 1 on RP 114424 and lots 21 and 22 on RP 47247 located to the east of Rathdowney and shown in figure 1 (‘application to review’). [2] As did the parties, I will refer to the land to the north of Rathdowney as the northern block and the land to the east of Rathdowney as the eastern block. [3] The regulation management map of the northern and eastern blocks at the time of the application is shown in figure 2 in the joint statement of agreed facts. [4] The application was for the parts of the blocks coloured blue in figure 2. Internal review decision [5] The internal review notice sets out the grounds of the application for an internal review of the original decision and the internal review decision. 1 Exhibit R1. -- 3 of 34 -- 4 [6] The statement of reasons accompanying the internal review notice sets out the findings on review of the original decision. It then identifies and summarises the supporting information provided with the application for internal review. [7] The reasons for the internal review decision are in the following terms: 1. Based on the evidence available to me I find that the PMAV 2019/003038 does represent the vegetation category areas that exist on the property. No evidence has been provided, or is otherwise available, that can clearly demonstrate that the areas outside those already converted from category B to category X in PMAV 2019/003038, meet the requirements to be mapped as category C or category X. 2. Natural justice was appropriately afforded to the applicant, as two draft PMAV offers were sent to the applicant, which provided sufficient relevant information as to why category B areas were not made category X or C areas on the draft PMAVs and requested that the applicant provide a response/submissions and further information. When further information was provided by the applicant, but was found to be insufficient, the assessing officer provided further natural justice by giving more information and advice to the applicant in regard to the information/data required to re-assess the category B. 3. The submission attached to the Internal Review application did not demonstrate that the areas not converted from category B to category C or X did not meet the definition of remnant vegetation. Grounds of the application to review [8] Mr Drynan, in his application to review the internal review decision, briefly sets out the reasons why he thinks the internal review decision is wrong or not properly made. It reads: 1. The decision-maker made a decision not to make a requested PMAV that would show a particular area of land as category X, the decision being beyond jurisdiction in that it was based on a consideration/factor irrelevant to the categorization of an area. 2. The decision-maker made a decision not to make a PMAV that would show as category X all areas of land currently mapped as category B, that decision being illogical and unreasonable given the evidence before the decision-maker and the belief the decision-maker held. While a decision-maker can refuse to make a requested PMAV, he has to have (and report) a not unreasonable basis. 3. Alternatively, the decision-maker made a decision beyond jurisdiction in that the decision-maker refused to make a PMAV as proposed by the PMAV applicant, despite the PMAV applicant providing the necessary supporting information for the category C are proposed, namely that information about the proposed vegetation category area prescribed in the Regulations made under the VMA, the decision maker basing his refusal on his view that the applicant had not provided further information he wanted and which related to the inappropriateness of an alternative (the existing) mapping of the area as category B preferred by the decision-maker. Contrary to principles -- 4 of 34 -- 5 of administrative law, the decision-maker inappropriately sought to shift any relevant evidentiary burden relating to the existing category B from himself having to substantiate that categorization that he asserted was correct to the applicant having to show that what the decision maker asserted was wrong. Moreover, the decision-maker was wrong in asserting the applicant had not demonstrated the category B categorization was wrong. In his submission to the internal review, the applicant demonstrated that in providing information that showed his proposed category C categorization was right he also showed that the category B categorization was not right. 4. Alternatively, the decision not to make a PMAV showing all areas currently mapped as category B and proposed for mapping as category C was beyond jurisdiction in that he applied the wrong standard of proof in concluding that these areas were suitable for mapping as category B. 5. The decision-maker failed, as did the officer who made the original decision reviewed by the decision-maker (and as had other officers of the Department of Resources (or its ancestors with responsibility for implementing the VMA, with whom the applicant over many years had discussed the erroneous mapping by phone, though they at least might try to justify their inaction on the basis of VMA s 20AJ which states that a landowner wanting the regulated vegetation management map changed had to apply for a PMAV) to take appropriate steps the CE was empowered to take unilaterally under the VMA and that the CE would reasonably be expected to take to ensure that the regulated vegetation management mapping decision for the land complied with the VMA legislation and that the landowner was not subjected to unlawful regulation in managing his property. Nothing in the VMA gives the Department, either alone or in collusion with a land owner, the lawful power to regulate vegetation management wrongly. [9] He then goes on to expand on each of the reasons. [10] Mr Drynan states what he wants to happen, what he seeks from the Tribunal, in the following terms: 1. That the tribunal order, given the decision-maker’s stated belief that there is insufficient evidence to conclude the vegetation has the status of a regional ecosystem, that the vegetation not be recognized as either remnant vegetation or high value regrowth vegetation and that all parts of the land the subject of the PMAV application be now mapped on a PMAV as category X. 2. In the alternative, that the tribunal order the CE to set aside the decision and to reassess the remnant vegetation status of the vegetation as it would have existed around 2000 when the mapping was done, making use of (a) imagery from just after that mapping, (b) ground-based information from today combined with estimated changes in both vegetation height and predominant canopy cover that would have occurred over the past 20 years allowing “backcasting” of the predominant canopy height and cover of the vegetation at the earlier time and (c) locally sourced ground-based information of the type -- 5 of 34 -- 6 supplied by the applicant, that bears directly on the height to which the vegetation on the land would normally grow and on the predominant layer canopy cover the vegetation would normally attain, as required for such assessment. 3. In the alternative, find that the applicant has shown the PMAV as proposed by him is correct for all currently mapped category B areas; and order the decision maker to make that PMAV except for areas the decision-maker is able to prove beyond doubt are areas of remnant vegetation. Joint statement of agreed facts [11] The parties agreed and filed a joint statement of agreed facts, as follows: 1. The land the subject of this matter is located approximately 4-5km to the north and east of Rathdowney in southeast Queensland as shown generally in Figure 1. Figure 1: General location of the land approximately 4-5km north and east of Rathdowney 2. The matter involves four parcels of freehold land, the real property descriptions of which are (‘the land’): a. Lot 1 on WD2104 (located to the north of Rathdowney as shown on Figure 1); b. Lot 1 on RP114424 and Lots 21 & 22 on RP47247 (located to the east of Rathdowney as shown on Figure 1). 3. The registered owner/s of: a. Lot 1 on WD2104 is the Applicant; and -- 6 of 34 -- 7 b. Lot 1 on RP114424 and Lots 21 & 22 on RP47247 are the Applicant and Elizabeth Alison Drynan as joint tenants. 4. On 2 July 2019, the Applicant applied under section 20C of the VMA for a property map of assessable vegetation (‘PMAV’) and included written submissions with maps for the land. 5. The regulated vegetation management map of the land current on the date the Applicant applied for a PMAV is shown in Figure 2. Figure 2: Regulated vegetation management map of the land as of 2 July 20192 6. On 4 July 2019, the Department emailed the Applicant acknowledging Receipt of PMAV Application 2019/003038. 7. The PMAV application concerned only the blue areas in Figure 2 and requested a PMAV only for those parts of the blue areas that would have their mapping changed. 8. On 26 July 2019, the Department made a Draft PMAV offer to the Applicant, including a letter dated 25 July 2019 and draft PMAV sheets one and two. 9. On 23 August 2019 and 26 August 2019, the Applicant emailed the Department rejecting the draft PMAV and provided a submission in response to the draft PMAV, including some ground-based evidence of the height undisturbed vegetation would reach on the land and the predominant canopy cover it would have and also including some other transect based evidence of the average height of the predominant canopy of the 2019 vegetation and its cover. The Department considered this evidence was not collected consistent with the Queensland Herbarium’s published mapping methodology. 10. On 22 January 2020, the Department made a Second Draft PMAV offer to the Applicant, including a letter dated 20 January 2020 and Draft PMAV sheets one and two. 11. On 10 February 2020, the Applicant emailed the Department a signed 2 The blue areas are category B areas, and the white areas are category X areas. -- 7 of 34 -- 8 response form for the Second Draft PMAV. Two explanatory paragraphs were added to the form by the Applicant. Those statements were: a. “1. I accept the draft map as a map for the area included in the PMAV. I do not accept that the map is an appropriate map for the areas for which I applied for a PMAV, namely areas currently shown but wrongly, on the original vegetation management map as Category B. Much of that area should be mapped as Category C in accordance with the VMA. Some areas, as the [Department] knows, are properly Category X.” b. “2. I do not understand that I must provide further evidence. I have provided evidence that the area currently mapped as Category B should be properly mapped as Category C.” 12. The response provided by the applicant did not include further evidence that the area was not remnant vegetation (a category B area) such as vegetation transect data. 13. On 30 September 2020, the Department certified PMAV 2019/003038. 14. On 30 September 2020, the Department emailed the Applicant the Certification Letter, Information Notice and Certified PMAV. 15. The regulated vegetation management map for the land post the certification of PMAV 2019/003038 (and at present) is shown in Figure 3. Figure 3: Regulated vegetation management map for the land post certification of PMAV 2019/0030383 16. The areas in dispute are the areas on the regulated vegetation management map for the land post certification of PMAV 2019/003038 that are not mapped as category X areas. These are all the blue areas in Figure 3. 17. On 28 October 2020, the Applicant applied under section 63 of the VMA for an internal review of the original decision of his PMAV application. 3 The blue areas are category B areas, and the white areas are category X areas. -- 8 of 34 -- 9 18. On 28 October 2020, the Applicant emailed the Department a corrected application for internal review. 19. On 4 December 2020, the Department emailed the Applicant the internal review letter and internal review notice confirming the original decision, with Internal Review Reference 2020/013468 and Original PMAV Reference 2019/003038. 20. On 11 January 2021, QCAT Brisbane received the Applicant’s application to review decision 2020/013468 made under section 63B of the VMA. Mr Drynan’s statement of evidence [12] On 28 July 2021, Mr Drynan filed in the Tribunal a statement of evidence in accordance with directions given by the Tribunal (‘Mr Drynan’s statement of evidence’). He summarises the contents of the statement in the opening paragraph: This is a statement of what I have observed, experienced, or otherwise perceived and interpreted in relation to • vegetation and changes in vegetation on the land now the subject of this review (here in after referred to as the relevant land); • [Department] behaviour in mapping decisions and his own behaviour; and • legislation, statutory instruments and orders thought by me to have relevance to this merits External Review of the decision of the [Department] Internal Review to confirm an earlier [Department] decision not to make the PMAV as had been requested in 2019, including then things pertinent to that earlier [Department] decision and then too things pertinent to the original (ca 2000) mapping of vegetation on the relevant land, the latter being mapping which I had sought to have corrected via my PMAV application. [13] He then continues: There has been a long-running dispute between the [Department] and me over the mapping of vegetation on my land. The dispute might reasonably be said to arise out of the fact, as recorded by Mr David Lawler, the [Department] assessor of the PMAV application, “[The applicant, Ross Drynan,] has a lot of interpretations of the VMA which are way different from our interpretations and implementation of the act” ( EX-4, page 111, interaction item dated 31/07/2019). [14] Under the heading ‘Synopsis’, Mr Drynan states his application was perhaps relatively unusual in that ‘… I sought a PMAV to apply to a part of my land that was not fully defined in advance of finalization of the PMAV but that was defined as only that part of my land which was currently mapped as Category B which, on certification of the PMAV, would be mapped as category B.’ In the first instance, he states, ‘… I sought a PMAV that would amend the vegetation maps that had originally been produced around 2000 and that I had always believed was wrong.’ [15] He later explains: In recognition of the possibility the [Department] might not be willing to make this requested error-correcting PMAV, I explicitly indicated in my application that should the [Department] not be prepared to make the requested PMAV correcting the previously made vegetation map, but only be willing to make a -- 9 of 34 -- 10 PMAV based on 2019 vegetation, I contingently wanted my PMAV application to then be taken as one for a PMAV based on current vegetation and that under the VMA this would correctly show most of the relevant land as being Category C land. [16] He contends the Department ‘… was wrong not to make an error-correcting PMAV on the basis of earlier vegetation and, further, if the [Department] was right not to make that map, it was wrong not to make a PMAV for the relevant land to depicting the land largely as Category C land as I had contingently proposed …’ [17] Mr Drynan, under the heading ‘What I have observed, done and think’, sets out in considerable detail his observations of the vegetation on the northern and eastern blocks and the mapping of the vegetation. His observations were not challenged by the Department. He also comments on the relevant provisions of the VM Act and the application of those provisions to the blocks. [18] The internal reviewer, Mr Drynan states, has concluded the original 2000 mapping was correct, a conclusion reached on the basis of remote imagery. Such imagery, he continues, ‘… was inadequate evidence to support to the original mapping and is inadequate to support the Reviewer’s conclusion that the 2000 mapping was correct …’ He later repeats the internal review decision ‘… is based solely on remote imagery and no use of ground based information to confirm the correctness of the categorisation ...’ [19] Mr Drynan, towards the end of his statement of evidence, states that: I contend that to certify vegetation as remnant, much more is required of the [Department] than merely establishing vegetation appears, on the basis of remote images, to be remnant and throwing it to the owner to show whether it actually is or not. The vegetation has to be remnant. Appearance is not necessarily reality. The Government is only empowered to regulate areas of land as though the areas have remnant vegetation if indeed the areas do have remnant vegetation. It is not empowered to regulate areas of land as though the areas had remnant vegetation when the areas only appear to have it. (Mr Drynan’s emphasis) [20] He adds: The mapping of remnant vegetation on the relevant land (done in the early 2000s) evidently did not focus directly on height and canopy coverage but instead, as noted two paragraphs ago, vegetation was assumed to be remnant unless there were signs of past clearing evident in available aerial imagery. No on-ground assessments were made on the land by the mappers. The remote imagery was assumed to be sufficient. Some areas were mapped as remnant and some as non-remnant. The basis for the differential mapping is unclear. Department’s statement of evidence [21] The Department, on 27 May 2022, filed in the Tribunal an affidavit of Sandra Witheyman. At the time, she was a Senior Natural Resource Management Officer employed by the Department. [22] She briefly summarises her qualifications and experience and explains the purpose and process for the making of a PMAV. Ms Witheyman then summarises her involvement in the proceeding and, in paragraphs are 19 – 24, deposes to her opinion on the internal review decision and the mapping of the relevant parts of the northern and eastern blocks. The Department, however, does not rely on those paragraphs it -- 10 of 34 -- 11 subsequently having filed in the Tribunal a statement by an expert witness, Daniel Thomas Kelman, (‘Mr Kelman’s statement of evidence’)4 and a supplementary statement of evidence by Mr Kelman (‘Mr Kelman’s supplementary statement of evidence’)5. [23] Mr Drynan did not require Ms Witheyman to attend the hearing of the proceeding for cross-examination. Mr Drynan’s supplementary statement of evidence [24] Mr Drynan, on 29 April 2022, in response to leave granted by the Tribunal, filed a supplementary statement of evidence (‘Mr Drynan’s supplementary statement of evidence’). He corrects a typographical error in his earlier statement of evidence. [25] Mr Drynan then sets out what he describes as transects of the northern and eastern blocks carried out in March 2022 and April 2022. Two photographs of the area are included. [26] Then, Mr Drynan refers to the decision of the High Court of Australia in Shi v Migration Agents Registration Authority6 (‘Shi’). He does so, it appears, in support of his earlier submission the Tribunal must decide the application for review on the basis of the material before the original decision-maker; in other words the material at the time Mr Drynan applied to the Department for the making of a PMAV for the relevant parts of the northern and eastern blocks. The passages referred to are from the judgement of Kirby J, at paragraphs [40], [41], [43] and [44], the judgement of Hayne and Heydon JJ, at [92] and [99], and Kiefel J at [142] and [143]. Mr Kelman’s statement of evidence [27] On 26 August 2022, the Department filed in the Tribunal Mr Kelman’s statement of evidence. Mr Kelman is a Principal Botanists employed by the Department in the Herbarium Ecosystem Survey and Mapping Unit. [28] Mr Kelman summarises his qualifications and experience, attaching to the statement a summary resumé. He states he was asked to provide an expert opinion on the remnant status of the Regional Ecosystems on the relevant parts of the northern and eastern blocks. Following the methodology in the report entitled Methodology for surveying and mapping regional ecosystems and vegetation communities in Queensland, prepared by V J Neldner et al of the Department of Environment, Science and Innovation Herbarium, Science and Technology Division7 (‘Neldner report’), he examined the imagery, including aerial photographs and high-resolution satellite images, from 1995 to 2019. They revealed, Mr Kelman states, somewhat different histories for the two blocks. He assessed each block using the sequence of steps in the flowchart for determining remnant vegetation on page 31 of the Neldner report and reproduced in the schedule to these reasons for decision. [29] Mr Kelman comments on the aerial photographs of the northern and eastern blocks and concludes: 4 Exhibit R3. 5 Exhibit R4. 6 [2008] HCA 31. 7 The Neldner report is available by following the link Methodology for surveying and mapping regional ecosystems and vegetation communities in Queensland. -- 11 of 34 -- 12 Examination of available aerial photography showed that field visits and on- ground measurements were needed to determine whether the woody vegetation in the contested areas was remnant vegetation with at least 50% of the cover and 70% of the height of the characteristic species compared to reference sites in the relevant regional ecosystems ... [30] He and Tim Ryan, a Bioregional Coordinator and expert in regional ecosystem mapping of the Southeast Queensland Bioregion, visited the northern block on 18 July 2022. They traversed and viewed each of the contested areas and measured vegetation height and cover along eight 100 metre transects in accordance with the mapping methodology in the Neldner report. The crown cover of the ecologically dominant layer of the local reference site, Mr Kelman states, is 66% and the median height is 28 metres. The ecological dominant layer of the vegetation at transects one – seven all exceed 50% of the crown cover and 70% of the height of the ecological dominant layer of the local reference site and are therefore remnant vegetation. [31] The measurements made at the transects are set out in table 1 in Mr Kelman’s statement of evidence reproduced below: Transect RE Crown cover of EDL Average height of EDL in metres Crown cover of local reference EDL Local reference EDL height in metres Transect crown cover % of reference site Transect height % of reference site 1 12.9-10.2 46.60% 25.2 66% 28 71% 90% 2 12.9-10.2 77.90% 27.1 66% 28 118% 97% 3 12.9-10.2 75.80% 23.7 66% 28 115% 85% 4 12.9-10.2 67.30% 25.8 66% 28 102% 92% 5 12.9-10.2 54.80% 20.8 66% 28 83% 74% 6 12.9-10.2 60.80% 20.6 66% 28 92% 74% 7 12.9-10.2 54.40% 24.9 66% 28 82% 89% 8 12.9-10.3 60.50% 24.1 75% 27 81% 89% Table 1: Measurements made at transects and local reference sites with calculated percentages of height and crown cover. The calculated percentages all exceed the remnant vegetation cut-offs of 50% for crown cover and 70% for height.8 [32] Mr Kelman and Mr Ryan visited the eastern block on 19 July 2022. They traversed and viewed each of the contested areas on the block and measured vegetation height and cover along six 100 metre transects in accordance with the mapping methodology in the Neldner report. The crown cover of the ecological dominant layer measured at each of the transects exceeded 50% of that at the appropriate local reference sites and the height of the ecological dominant layer measured at each of the transects exceeded 70% of that at the appropriate local reference sites. Each of the transects, Mr Kelman states, are therefore sited in remnant vegetation. 8 Corrected by Mr Kelman in his supplementary statement of evidence. -- 12 of 34 -- 13 [33] The actual measurements are set out in table 2 in the Mr Kelman’s statement of evidence reproduced below: Transect RE Crown cover of EDL Average height of EDL in metres Crown cover of local reference EDL Local reference EDL height in metres Transect crown cover % of reference site Transect height % of reference site 9 12.8.16 44% 12.9 43% 17 102% 76% 10 12.8.16 55.7% 13.6 43% 17 130% 80% 11 12.8.17 51.2% 15.3 47% 18 109% 85% 12 12.8.17 67% 17.1 47% 18 143% 95% 13 12.3.3 67% 18.1 45% 22 149% 82% 14 12.8.17 46% 16.4 47% 18 98% 91% Table 2: Measurements made at transects and local reference sites with calculated percentages of height and crown cover. The calculated percentages all exceed the remnant vegetation cut-offs of 50% for crown cover and 70% for height.9 [34] Mr Kelman compared the woody vegetation visible in 2018 and 2019 imagery used to prepare his statement of evidence and the woody vegetation observed during the visits to the northern and eastern blocks. There is no difference in the remnant status of the vegetation on either block between the two dates, Mr Kelman states. [35] Mr Kelman states that a thorough study of the available imagery and the information and knowledge gained on visiting the northern and eastern blocks has enabled him to produce a map accurately showing the status of the vegetation on the blocks not covered by a PMAV. The map is figure 15 in Mr Kelman’s statement of evidence and is reproduced below: 9 Corrected by Mr Kelman in his supplementary statement of evidence. -- 13 of 34 -- 14 Figure 15: Remnant status of vegetation in areas on this property not covered by PMAV 2019/003038. Mr Drynan’s response to Mr Kelman’s statement of evidence [36] Mr Drynan, on 20 September 2022, filed in the Tribunal a response to Mr Kelman’s statement of evidence. It is to be recalled Mr Drynan was critical of the Department in his statement of evidence for mapping the northern and eastern blocks in reliance on satellite imagery, contending the Department should have visited the blocks to confirm what was seen in the imagery. Now, he challenges the observations of Mr Kelman but without offering expert observations and opinions in reply. [37] He contends there is nothing in Mr Kelman’s statement of evidence supporting the internal review decision. Mr Kelman’s supplementary statement of evidence [38] On 17 November 2022, the Department filed in the Tribunal Mr Kelman’s supplementary statement of evidence. He corrects a typographical error in table 1 in his earlier statement of evidence repeated in table 2. There, he referred to cut-offs for assessing remnant vegetation as being 50% for height and 70% for crown cover when the correct cut-offs are 50% for crown cover and 70% for height. The errors, Mr Kelman states, have no bearing on the conclusions reached in his earlier statement of evidence. [39] Mr Kelman goes on to respondent to Mr Drynan’s response to his earlier statement of evidence. He concludes: There is nothing in Mr Drynan’s submissions on my expert report that materially changes my views and I still hold the views expressed in my expert report. Legislative framework [40] The purpose of the VM Act is spelt out in section 3(1). It is to regulate the clearing of vegetation in a way that: -- 14 of 34 -- 15 (a) conserves remnant vegetation that is: (i) an endangered regional ecosystem; or (ii) an of concern regional ecosystem; or (iii) a least concern regional ecosystem; and (b) conserves vegetation in declared areas; and (c) ensures the clearing does not cause land degradation; and (d) prevents the loss of biodiversity; and (e) maintains ecological processes; and (f) manages the environmental effects of the clearing to achieve the matters mentioned in paragraphs (a) to (e); and (g) reduces greenhouse gas emissions; and (h) allows for sustainable land use. [41] The purpose is achieved mainly by providing for: (a) the following matters: (i) assessment benchmarks for the Planning Act10 for the assessment of assessable development that is the clearing of vegetation, other than an assessment carried out by the planning chief executive; (ii) for the Planning Act, the matters a referral agency other than the planning chief executive: (A) must or may assess a development application against; or (B) must or may assess a development application having regard to; and (b) the enforcement of vegetation clearing provisions; and (c) declared areas; and (d) a framework for decision making that, in achieving the Act’s purpose in relation to subsection (1)(a) to (e), applies the precautionary principle that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment if there are threats of serious or irreversible environmental damage; and (e) the regulation of particular regrowth vegetation.11 [42] Relevantly, remnant vegetation is defined in the schedule to the VM Act. It means vegetation: (a) that is: (i) an endangered regional ecosystem; or (ii) an of concern regional ecosystem; or 10 Defined in the schedule to the VM Act to mean the Planning Act 2016 (Qld). 11 VM Act, s 3(2). -- 15 of 34 -- 16 (iii) a least concern regional ecosystem; and (b) forming the predominant canopy of the vegetation: (i) covering more than 50% of the undisturbed predominant canopy; and (ii) averaging more than 70% of the vegetation’s undisturbed height; and (iii) composed of species characteristic of the vegetation’s undisturbed predominant canopy. [43] Undisturbed predominant canopy, for vegetation, is defined in the schedule to mean the predominant canopy the vegetation normally has. [44] Section 10 of the VM Act provides for the preparation of a State policy for vegetation. The current policy is the State Policy for Vegetation Management, version 4.0012 (‘State Policy’). The purpose of the Policy is spelt out in section 1. It provides a framework for decision making under the VM Act including: (a) making accepted development vegetation clearing codes; (b) making area management plans; (c) making and amending maps, including regulated vegetation management maps and property maps of assessable vegetation; and (d) making a determination of clearing for a relevant purpose. [45] Also, it provides a framework for decision making under the Planning Act in relation to vegetation management, including: (a) establishing and implementing assessment benchmarks; and (b) providing special considerations for significant community projects. [45] Section 3 of part 4.6 of the State Policy provides that in assessing an application for a PMAV, an area will be assessed first for suitability as category B, then for suitability for category C, then for category R. An area will not be made category X if it is identified as remnant, or as high value regrowth using the Queensland Herbarium’s published methodology, currently the methodology in the Neldner report. [46] Section 3.3 of the Neldner report, entitled ‘Remnant vegetation cover’ provides, inter alia, for the assessment of remnant vegetation. It reads: Vegetation is assessed as remnant unless there is evidence, from satellite imagery, SLATS13 woody cover and/or available aerial photographs and/ or orthorectified imagery, that there has been anthropogenic (caused by humans) clearing. Where there has been tree death caused by natural causes, e.g. drought death, fire, cyclone, storm or hail damage or insect or fungal attack, the vegetation is still regarded as remnant. Where there is evidence of anthropogenic clearing, the vegetation may still be classified as remnant if it is assessed as meeting the 50% cover, 70% height and characteristic species criteria. By studying satellite imagery and aerial photographs and comparing 12 The State Policy is available by following the link. https://www.resources.qld.gov.au/?a=109113%3Apolicy_registry%2Fstate-policy-vegetation- management.pdf. 13 Statewide Landcover and Trees Study (‘SLATS’). SLATS is a scientific program that uses satellite imagery to monitor and report on Queensland’s woody vegetation. -- 16 of 34 -- 17 the pattern on the imagery with the extant vegetation in the field, Queensland Herbarium botanists, technicians and computer support officers (GIS) gain expertise in the recognition of remnant vegetation for different types of vegetation and regional ecosystems from the imagery and aerial photographs. This includes knowledge of the time it takes for a vegetation type to grow back to remnant status after clearing. For example, no eucalypt woodland or open forest vegetation types cleared in the last 20 years have met the remnant definition following on ground assessment. These vegetation types usually take 30 years to regain remnant status (Queensland Herbarium, unpublished data, March 2004). [47] A flow chart showing the assessment sequence for mapping vegetation cover is in figure 3 in the Neldner report and figure 1 in Mr Kelman’s statement of evidence. It shows the sequence of steps used to assess and map remnant vegetation cover. As I have said, it is reproduced in the schedule to these reasons for decision. [48] The VM Act provides for the certification of a regulated vegetation management map for a part of the State and showing the vegetation category areas for the part.14 Additionally, it provides for certification of a map as a PMAV for an area and showing the vegetation category area for the area. [49] There are five vegetation category areas, category A area, category B area, category C area, category R area and category X area.15 They are described the table below: Category area Description Category A area An area, other than a category B area, category C area, category R area or category X area, shown on the regulated vegetation management map as a category A area that: (a) is any of the following: (i) a declared area; (ii) an offset area; (iii) an exchange area; or (b) has been unlawfully cleared; or (c) is, or has been, subject to— (i) a restoration notice; or (ii) an enforcement notice under the Planning Act containing conditions about restoration of vegetation; or (d) has been cleared of native vegetation and in relation to the clearing a person has been found guilty by a court, whether or not a conviction has been recorded, of a clearing offence; or (e) the chief executive decides under section 20BA is a category A area; or (f) is a category A area by agreement under section 20C(3) if, immediately before the agreement is entered into, the area was a category X area on a PMAV containing remnant vegetation or high value regrowth.16 14 VM Act, s 20A. 15 Ibid, s 20AKA. 16 Ibid, s 20AL. -- 17 of 34 -- 18 Category B area An area, other than a category A area, category C area, category R area or category X area, shown on the regulated vegetation management map as a category B area that: (a) contains remnant vegetation; or (b) the chief executive decides to show on the regulated vegetation management map as a category B area; or (c) if section 20AN does not apply to the area: (i) is a Land Act tenure to be converted under the Land Act 1994 to another form of tenure; and (ii) contains: (A) an endangered regional ecosystem; or (B) an of concern regional ecosystem; or (C) a least concern regional ecosystem.17 Category C area An area, other than a category A area, category B area, category R area or category X area, shown on the regulated vegetation management map as a category C area that: (a) contains high value regrowth vegetation; or (b) the chief executive decides to show on the regulated vegetation management map as a category C area.18 Category R area An area, other than a category A area, category B area, category C area or category X area, shown on the regulated vegetation management map as a category R area that is a regrowth watercourse and drainage feature area.19 Category X area An area, other than a category A area, category B area, category C area or category R area (in which the clearing of vegetation has happened), shown on the regulated vegetation management map as a category X area.20 [50] An owner of land may apply to the chief executive for the making of a PMAV for the owner’s land or part of the land.21 If an owner does so and the owner proposes the land or part of the land (‘relevant area’) be a category X area on the PMAV, the chief executive is prohibited from making the relevant area a category X area on the PMAV in the circumstances described in sections 20CA(2) and (3) of the VM Act. [51] The Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by section 63B of the VM Act.22 In exercising its review jurisdiction, the Tribunal: (a) must decide the review in accordance with the QCAT Act and the VM Act; and (b) may perform the functions conferred on the Tribunal by the QCAT Act or the VM Act; and 17 Ibid, s 20AM. 18 Ibid, s 20AN. 19 Ibid, s 20ANA. 20 Ibid, s 20AO. 21 Ibid, s 20C. 22 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 17(1). -- 18 of 34 -- 19 (c) has all the functions of the decision-maker for the reviewable decision being reviewed .23 [52] The purpose of the review of a reviewable decision is to produce the correct and preferable decision.24 The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.25 Hearing [53] The application was heard by the Tribunal on 8 November 2024. Mr Drynan gave evidence. He confirmed as true and correct his statement of evidence filed on 28 July 202126 and supplementary statement of evidence filed on 29 April 202227. [54] Mr Drynan stated he did not want to add to the evidence in his statements of evidence. However, he submitted his application to the chief executive was an application for an amendment to the PMAV for part of his land, alternatively a PMAV for part of his land assessed on the vegetation in 2019, not 2022. In other words, Mr Kelman’s statements of evidence should be ignored. [55] Dr McGrath did not cross-examine Mr Drynan. The Department, he said, did not take issue ‘… with his factual statements about his land.’ [56] Mr Kelman also gave evidence. He confirmed as true and correct the facts set out in his statement of evidence28 and supplementary statement of evidence29. [57] In further evidence in chief, Mr Kelman expanded on what may be seen in the aerial photographs included in his statement of evidence. He then explained the process for measuring the height of trees during the visits to the blocks on 18 and 19 July 2022, and the process for selecting transects and measuring crown cover. [58] In cross-examination by Mr Drynan, Mr Kelman said he and Mr Ryan visited the blocks in response to Mr Drynan’s request and because the Department wanted his opinion on the vegetation. He was asked questions about measuring the height of trees and tree canopy designed, as Mr Drynan said, to demonstrate the process is ‘… less than total precision …’ [59] Mr Kelman, in response to questions put to him by Mr Drynan, explained the process for mapping vegetation in Queensland and his involvement in the process. Given the history of the vegetation on the relevant parts of the northern and eastern blocks evidenced in aerial photographs, Mr Kelman further explained, the vegetation was presumed to be remnant vegetation. The visits to the blocks by Mr Ryan and him were in response to Mr Drynan asserting the vegetation is neither remnant vegetation nor category B area; the Department wanted his opinion on whether the vegetation is remnant vegetation. [60] Mr Drynan asked Mr Kelman questions about the location and use of transects to classify vegetation and the measurement of tree canopies. He was also asked questions by Mr Dryden about the location and use of reference sites. 23 Ibid, s 19. 24 Ibid, s 20(1). 25 Ibid, s 20(2). 26 Exhibit A1. 27 Exhibit A2. 28 Exhibit R3. 29 Exhibit R4. -- 19 of 34 -- 20 [61] In re-examination by Dr McGrath, Mr Kelman was taken to paragraph 2.4.1 of appendix 2 to the Neldner report. He confirmed he and Mr Ryan used method one for estimating tree cover, the crown or line-intercept method. The height of woody vegetation was measured in accordance with paragraph 2.4.4, the ecologically predominant layer was determined in accordance with paragraph 2.5.4 and the range of variation within the vegetation community was determined in accordance with paragraph 2.5.5. [62] No doubt Mr Drynan’s cross-examination of Mr Kelman was designed to call into question the methods used by Mr Kelman to assess the vegetation on the relevant parts of the northern and eastern blocks to reach his conclusions and to question the reliability and validity of those methods. Mr Kelman’s responses to the questions put to him by Mr Drynan left me comfortably satisfied the methods used and the reliability and validity were sound and in accordance with the VM Act, State Policy and Neldner report. Consideration Departments outline of submissions [63] Dr McGrath, at the hearing of the proceeding, provided the Tribunal and Mr Drynan with an outline of submissions. In it, Dr McGrath identifies the factual dispute as the extent to which the vegetation in the areas in dispute should be mapped as: (a) category X (non-assessable vegetation), which would have the practical effect that future clearing of regrowth or remnant vegetation is allowed at any time without approval; or (b) category C (high value regrowth), which would have the practical effect that future clearing is allowed in only limited circumstances. [64] The Department’s ultimate submission, Dr McGrath states, is the review should be resolved by accepting the evidence of Mr Kelman and order a PMAV be issued accordingly. [65] Dr McGrath submits that the review is to be conducted on the basis of the material before the Tribunal and the law as it exists at the time of the review, not some earlier time. He cites in support of the submission the decision of the Appeal Tribunal in Knuth & Ors v Department of Natural Resources, Mines and Energy30 (‘Knuth on appeal’). [66] Dr McGrath refers to the legislative framework, including the explanatory notes to the Vegetation Management and Other Legislation Amendment Bill 2004 (Qld) amending the VM Act to introduce regulated vegetation management maps. The explanatory notes, as Dr McGrath submits, summarise the role of the maps and the category areas. He then goes on to comment on the evidence, submitting: The Applicant has provided a range of photographs and other material as evidence of the nature of vegetation on his land; however, the assessment of the correct mapping of the vegetation categories on the land is, ultimately, a matter of expertise which the Applicant does not possess. His material often blurs factual issues requiring expertise with legal submissions. 30 [2022] QCATA 26. -- 20 of 34 -- 21 [67] Dr McGrath summarises Mr Kelman’s findings and submits the review should be resolved by accepting his evidence and ordering a PMAV issue accordingly. The Department does not press for the remnant vegetation (category B) to be shown on the PMAV as Mr Drynan wishes to limit any PMAV to only areas found to comprise category C or category X vegetation. Mr Drynan’s closing submissions [68] Mr Drynan, in accordance with directions given by the Tribunal at the hearing of the proceeding, filed closing submissions. He summarises the background to the application for review and comments on the legislative framework. Then, under the heading ‘RELEVANCE OF TIME-SPECIFIC EVIDENCE TO A MERITS REVIEW’, he submits: Despite statements such as that of Senior Member Aughterson in Knuth & Ors v DNRME (2022) QCA 26, “ subject to legislative requirements, it is well accepted that a merits review or hearing de novo is conducted on the basis of the material then before the court or tribunal and the law as it exists at the time of the review or hearing”, the truth is, it is not well accepted. There would not be recurring cases re. the appropriate time-specific material if it were. [69] In support of the submission, he cites the decision of the High Court of Australia in Frugtniet v Australian Securities and Investments Commission31 (‘Frugtniet’). He then continues: If the Tribunal based its mapping decision in the present instance on the vegetation at the time of the Respondent's original decision, it would be acting consistently with the reasoning in Frugtniet (2019) and with the application of that reasoning to the decisions in Shi (2008)32 (decision based on facts at time of review, those facts of direct relevance to the question to be answered), Davis v DERM (2015) QCAT 301 (decision based on later information relevant to facts at the original decision time), but not fully consistently with the Tribunal's Knuth (2020 and 2022)33 decisions. The Applicant respectfully submits any inconsistency with the Knuth decision should be of little concern. [70] Under the heading ‘EVIDENCE AND ITS IMPLICATIONS FOR A CORRECT PMAV’, Mr Drynan submits the past clearing of the northern and eastern blocks qualifies the entire area for mapping as category X area, and it would be correct to do so. The original mapping of his land as remnant vegetation, he later submits, was never based on a determination the vegetation was remnant but merely on a presumption. To rely on later vegetation, wrongfully not allowed to the cleared, as the basis and justification for continued mapping of the land as category B area or changed to category C area ‘… is perverse and distinctly unjust, if not unlawful …’, Mr Drynan submits. 31 [2019] HCA 16, per Kiefel CJ and Keane and Nettle JJ at [14] and [15] and Bell, Gageler, Gordon and Edelman at [51] and [53]. 32 Shi v Migration Agents Registration Authority [2008] HCA 31. 33 Knuth & Ors v Department of Natural Resources, Mines and Energy [2020] QCAT 156 (‘Knuth at first instance’) and Knuth & Ors v Department of Natural Resources, Mines and Energy [2022] QCATA 26 (‘Knuth on appeal’). -- 21 of 34 -- 22 [71] His sworn evidence, Mr Drynan submits, is that, except for the power line easement and for minor permitted clearing of the vegetation for tracks, fences and fire breaks, the areas mapped as category B area on the regulated vegetation management map have not been cleared since the early 2000s, a period of at least fifteen years. He continues: The Respondent has provided no evidence to the contrary. The Respondent’s Expert Witness found no evidence, either on remote imagery or via on-ground study, of clearing in that time. [72] The inevitable conclusion, he submits, is that the land is mappable as category C area. [73] In summary, Mr Drynan submits, ‘… the evidence taken in conjunction with the VMA, establishes that some areas (e.g. those identified as being neither remnant nor HVRV by the Expert witness) have insufficient vegetation to be a regional ecosystem and these areas are correctly mappable only as Category X. It further establishes that all other areas are correctly mappable as either Category X or Category C. The available evidence is insufficient to establish that any area carried remnant vegetation in 2019. There is insufficient evidence to support continued mapping of any of the land as Category B.’ (Emphasis in Mr Drynan’s closing submissions) [74] Mr Drynan comments on the perceived hardship consequent on the mapping of his land. The Tribunal, he submits, should order as follows: 1. In accordance with its functions and powers, the Tribunal amends the review decision. 2. The Tribunal directs the Respondent to make a PMAV that will cover all those parts of Lot 1 WD2104, Lot 1 RP114424, Lot 21 RP47247 and Lot 22 RP47274 presently mapped on the RVM Map as Category B, those parts all to be mapped on the PMAV as Category X. Department’s reply to Mr Drynan’s closing submissions [75] The Department, on 29 November 2024, filed submissions in reply to Mr Drynan’s submissions. The parties, it submits, agree the correct mapping of the vegetation on Mr Drynan’s land is a serious matter with the important consequences for the ongoing management of the land. Whilst not bound by the rules of evidence, the submissions continue, the Tribunal should consider the relevant rules. [76] The Tribunal should assess the mapping of the vegetation on Mr Drynan’s land in accordance with the VM Act, State Policy and Neldner report, it is submitted, drawing attention to sections 4.6 (3) and (4) of the Policy. [77] The Department cites the decision of the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles34 (‘Makita’) for guidance on assessing the value of opinions expressed by an expert witness. The evidence of Mr Kelman on the mapping of vegetation on Mr Drynan’s land, the Department submits, should be ‘strongly preferred’ over the evidence of Mr Drynan. [78] The Department comments on Mr Drynan’s criticism of Mr Kelman’s methodology and conclusions and submits Mr Drynan’s reasoning is founded on fundamentally mistaken and legally incorrect premises. The submissions set out reasons why the 34 [2001] NSWCA 305; (2001) 52 NSWLR 705, at [64]. -- 22 of 34 -- 23 evidence of Mr Kelman is to be preferred and then identifies the errors of law in Mr Drynan’s reasoning in the following terms: The error of law in Mr Drynan’s argument that “past clearing [of his land] qualifies the entire area for mapping as Category X and it would be correct to do so” goes to the heart of his reasoning and permeates throughout his submissions. As was emphasised in the Respondent’s opening oral submissions to the Tribunal and at [16] of the Respondent’s Outline, “remnant vegetation” is defined in the VMA not by reference to whether historically it has never been cleared but, rather whether at the time of assessment it meets the 50/70 rule of coverage and height. The VMA sets objective criteria for determining remnant vegetation status that do not depend on the history of clearing of the land in question. (Reference omitted) [79] Mr Drynan’s criticism of Mr Kelman’s evidence concerning the use and placement of transects to assess the abundance and height of vegetation and the use of reference sites, the submissions continue, ‘… fail to recognise that Mr Kelman (and the Tribunal) are required by the VMA and State Policy to apply the QBEIS site data collection method set out in Appendix 2 of Neldner35 to estimate matters such as vegetation abundance and height using transects and instruments to measure crown height …’ [80] The Department rejects Mr Drynan’s submission the application of the Neldner report under the State Policy is ‘invalid’ and submits it would be an error of law for the Tribunal not to apply the Policy here. [81] The decision of the High Court in Frugtniet did not overrule the principles of law set out in paragraphs [42] – [48] of Knuth on appeal, it is submitted by the Department. Consistent with the decision, the Tribunal ‘… should assess the PMAV application based on the law and facts at the date of the hearing …’ In any event, as the evidence of Mr Kelman shows, there is no material difference between the status of the vegetation on Mr Drynan’s land in 2019, 2022 or 2024. [82] The submissions then comment on Mr Drynan’s suggestion the vegetation can only be mapped as remnant vegetation area following on ground field work. The Department draws attention to the absence of evidence supporting Mr Drynan’s submission the mapping of his land as category B area and category C area ‘… makes it impossible to operate efficiently and economically …’ [83] In conclusion, the Department submits: [25] The Applicant seeks, at [67] of his Closing Submissions, orders that the whole of the areas in dispute be mapped as Category X. That request is contrary to the weight of evidence that the majority of those areas are correctly mapped as Category B or C. [26] The Department respectfully submits that the review should be resolved by accepting the evidence in the Kelman Report and ordering a PMAV be issued accordingly. [27] The Department submits the appropriate final orders are those set out at the conclusion of its Outline of Argument. 35 The Queensland Biodiversity and Ecology Information System (QBEIS) site data collection method is found in appendix 2 to the Neldner report. -- 23 of 34 -- 24 Issues [84] The issues raised by the parties in the proceeding are addressed under two subheadings. First, should Mr Drynan’s application for the making of a PMAV for the relevant parts of the northern and eastern blocks be assessed by the Tribunal on the material before the original decision-maker or on the material now before the Tribunal? [85] Secondly, what is the correct and preferable decision on Mr Drynan’s application for the making of a PMAV for the relevant part of the northern and eastern blocks? Should Mr Drynan’s application for the making of a PMAV for the relevant parts of the northern and eastern blocks be assessed by the Tribunal on the evidence before the original decision-maker or on the material now before the Tribunal? [86] Mr Drynan submits his application for the making of a PMAV for the relevant parts of the northern and eastern blocks should be assessed by the Tribunal on the evidence before the original decision-maker. The evidence that has emerged since and now before the Tribunal, he further submits, should be ignored. [87] In support of the submissions, Mr Drynan relies on the decision of the High Court in Shi. The decision, however, does not support the submissions. [88] Shi concerns the cancellation by the respondent of the appellant’s registration as a migration agent under the Migration Act 1958 (Cth). The Commonwealth Administrative Appeals Tribunal (‘AAT’) set aside the respondent’s decision and substituted its own decision. The Federal Court of Australia, at first instance and on appeal to the Full Court, confirmed the decision of the AAT. [89] One of the issues argued on appeal to the High Court was the AAT erred in its approach by failing to limit its review to the facts and circumstances prevailing at the time of the respondent’s decision, instead taking account of those at the time of the review, the contention pressed by Mr Drynan. [90] Kirby J cited the decision of the then President of the AAT, Davies J, in Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2)36. There, his Honour said: In Drake v Minister for Immigration and Ethnic Affairs, Bowen CJ and Deane J stated the function of the Tribunal as follows: ‘The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’ (Citation omitted) [91] Later, Kirby J continued: 41. Of emphasised, any such fresh decision replaces the decision of the primary administrative decision-maker within the Executive Government of the Commonwealth. In law, and in effect, it becomes the decision of the Executive Government. Many days, weeks, months or even a year or more might have passed since the original decision was made by the primary decision-maker. It would be theoretically conceivable that the 36 (1981) 3 ALD 88. -- 24 of 34 -- 25 Tribunal might make a decision which ought to have been made years, months, weeks or many days earlier, leaving it to the primary decision- maker then to update or alter that decision if any new facts and circumstances required, or warranted, that course. However, given the obvious purpose of having the Tribunal (as it is commonly put) “step into the shoes” of the primary decision-maker, so as to make the decision that ought to have been made “on the merits”, this would appear to ascribe to the Tribunal an artificial function. It would not be the natural and appropriate function, given the role, purpose and powers of the Tribunal, viewed in its administrative setting. 42. When making a decision, administrative decision-makers are generally obliged to have regard to the best and most current information available. This rule of practice is no more than a feature of good public administration. When, therefore, the Tribunal elects to make “a decision in substitution for the decision so set aside”, as the Act permits, it would be surprising in the extreme if the substituted decision did not have to conform to such a standard. [92] His Honour then referred to what was said by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd37: It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge, and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading … [93] Hayne and Hayden JJ, in a joint judgement, agreed. At [99], their Honours said: Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act; there is nothing in the AAT Act which would provide such a limitation. [94] They concluded that when the AAT reviews a decision under section 303 of the Migration Act, ‘… the question which the Tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the Tribunal makes its decision ....’38 [95] Crennan and Kiefel JJ agreed that in the circumstances the AAT was entitled to consider the fresh evidence available to it. Kiefel J dissented on another issue. [96] The decision in Frugtniet concerns a decision by the respondent the appellant is not a fit and proper person to engage in credit activities. The respondent was precluded by the relevant legislation from having regard to spent convictions. On application for review of that decision, the AAT approached the review on the basis that it was entitled to, and it did, take the spent convictions into account because the convictions 37 (1986) 160 CLR 24, at [45]; [1986] HCA 40. 38 Ibid, at [101]. -- 25 of 34 -- 26 were ‘… evidence of dishonest conduct that [was] relevant under the policy guidelines …’ [97] Appeals to the Federal Court and the Full Court of the Federal Court were dismissed. [98] Under the heading ‘The nature of administrative merits review’, Kiefel CJ and Keane and Nettle JJ held: The question for determination by the AAT on the review of an administrative decision under s 25 of the AAT Act is thus whether the decision is the correct or preferable decision. That question is required to be determined on the material before the AAT, not on the material as it was when before the original decision-maker. As Bowen CJ and Deane J held in Drake v Minister for Immigration and Ethnic Affairs, however, and has since been affirmed by this Court in Shi v Migration Agents Registration Authority, the AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.39 (Citations omitted) [99] Their Honours then continued: Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision- maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision.40 (Citations omitted) [100] Bell, Gageler, Gordon and Edelman JJ, in a separate decision, agreed. [101] In response to Mr Drynan’s submission, the Department refers to the decisions of the Tribunal in Davis v Department of Natural Resources and Mines41 (‘Davis’) and Knuth on appeal. [102] The decision in Davis concerns an application by the applicant to the Department for the making of a PMAV for land under section 20C of the VM Act. The applicant submitted the internal review decision was ‘seriously flawed’ because the decision- maker considered new information. [103] The Tribunal, at [19], observed: The Tribunal must conduct a fresh hearing on the merits so issues around an unsatisfactory internal review are not relevant. The Tribunal must stand in the shoes of the decision-maker and make the correct and preferable decision. The 39 Ibid, at [14]. 40 Ibid, at [15]. 41 [2015] QCAT 301. -- 26 of 34 -- 27 Tribunal may consider any evidence available at the hearing, including evidence not available to the original decision-maker and the applicable law is at the date of hearing. [104] I would qualify what is said by the Tribunal by adding the new evidence must be relevant to the question the original decision-maker was to decide. [105] In Knuth at first instance, the appellants applied to the Department for the making of a PMAV for a grazing property in North Queensland. The Department rejected the appellants’ draft PMAV instead mapping significant vegetation on the property as high value regrowth (category C area). [106] The Tribunal at first instance replaced the PMAV with a new PMAV without showing the vegetation category area sought by the appellants.42 [107] One of the issues raised on appeal was whether a review is conducted on the basis of the material then before the Tribunal and the law at the time of the review or the material before the original decision-maker and the law at the time of the original application. The Appeal Tribunal observed the issue is well settled, citing Dawson J in Harris v Caladine43: A hearing de novo may be contrasted with an appeal stricto sensu and an appeal by way of rehearing. In an appeal stricto sensu the question is whether, upon the material before the tribunal below, the conclusion which was reached was correct. An appeal by way of rehearing involves the rehearing of the matter as at the date of the appeal, but upon the evidence called before the tribunal below, subject to a power to receive further evidence. On an appeal by way of rehearing the rights of the parties must be determined by reference to the circumstances, including the law, as they exist at the time of the rehearing. [108] It then continued: [42] … Similarly, the Appeal Tribunal continued, in Esber v The Commonwealth of Australia44, Brennan J observed: Exercising an administrative jurisdiction, the A.A.T. determines applications for review on a hearing de novo, acting on the materials before it when it makes its determination. Where, on a hearing de novo, the question for decision is whether an applicant should be granted a right, the law as it then exists is applied, not the law as it existed at an earlier time. (Footnotes omitted) The observation of Brennan J was cited with approval by Fraser JA, with whom Philippides JA and Mullins J agreed, in D’Arro v Queensland Building and Construction Commission. [43] The question remains as to whether the legislation indicates a contrary intention. The transitional provision at s 129 of the Act provides that where an application was made ‘under s 20C’ before 8 March 2018 but had not been decided before that date, ‘the chief executive must continue to deal with and decide the application under this Act as in force before 8 March 2018’. In both the heading and body of the section, reference is made to applications under s 20C; that is, the original application for the PMAV. If it had been the intention to extend the transitional 42 See Knuth at first instance. 43 (1991) 172 CLR 84, at 125. 44 (1992) 174 CLR 430, at 448. -- 27 of 34 -- 28 arrangements to the application for internal review under s 63 and the application for external review under s 63B, that could readily have been spelt out in s 129. [44] While it might be argued that the requirement under s 129(2) of the Act for the chief executive to ‘continue to deal with and decide’ the application under the Act as in force before 8 March 2018, extends the operation of s 129 to the original application and the internal review by the chief executive, those words cannot be stretched to also embrace the quite separate external review by the Tribunal. The express transitional provision should be regarded as confining the transitional arrangements and, in particular, does not extend to external review proceedings before the Tribunal. In my view, though it is not necessary to decide, nor does it extend to the internal review. The term ‘continue to deal with’ can readily be understood to refer to the original decision maker, given the express reference to s 20C of the Act. In any event, in the present case, the question is one of what law should have been applied by the Tribunal on external review. (Citations omitted) [109] The role of the Tribunal in an application for review such as that now before it is well settled. It is to make the correct and preferable decision on the evidence before it.45 The Tribunal must hear and decide the application by way of a fresh hearing on the merits. [110] Mr Drynan’s submission to the Tribunal in deciding the application for review is confined to the evidence before the original decision-maker is rejected. It may consider the evidence now before it if and to the extent the evidence is relevant to the question the original decision-maker was to decide. The evidence includes the parties’ statements of evidence, Mr Kelman’s statement of evidence, Mr Drynan’s response to Mr Kelman’s statement of evidence, Mr Kelman’s supplementary statement of evidence and the oral evidence. [111] Even if Mr Drynan were correct, Mr Kelman compared the woody vegetation visible in the 2018 and 2019 imagery used in the preparation of his statement of evidence with the woody vegetation seen during the visits to the northern and eastern blocks on 18 and 19 July 2022. He states, and confirmed in oral evidence, there was no difference in the remnant status of the vegetation on either block between the two dates. [112] In his statement of evidence, Mr Kelman then continues: The primary observed difference was that there are areas in which some trees have died as a result of drought in the intervening period. Section 3.3 of the RE mapping methodology makes the point that “Where there has been tree death caused by natural causes, e.g. drought death, fire, cyclone, storm or hail damage or insect or fungal attack, the vegetation is still regarded as remnant. 45 Shi, per Kirby J at [37], [38], [45] and [46], Hayne and Heydon JJ, at [99] and Kiefel J, at [143]). In reviewing the decision, the Tribunal, to adopt a term frequently used by the courts and tribunals, stands in the shoes of the internal review decision-maker and must make the correct and preferable decision on the material before it. (Esker, at [440]; Frugtniet, at [51]. -- 28 of 34 -- 29 What is the correct and preferable decision on Mr Drynan’s application for the making of a PMAV for the relevant parts of the northern and eastern blocks? [113] Mr Drynan, as I have said, submits the whole of the relevant parts of the northern and eastern blocks mapped as category B area should be mapped as category X area because the past clearing of the blocks ‘… qualifies the entire area for mapping as category X, and it would be correct to do so.’ He is mistaken. [114] Contrary to Mr Drynan’s submission and as submitted by the Department, remnant vegetation is not defined by reference to past clearing of the vegetation. It is vegetation falling within one or more of the classes specified in paragraph (a) of the definition and forming the predominant canopy of the vegetation described in paragraph (b). [115] Mr Drynan submits his opinions on the vegetation mapping of the relevant parts of the northern and eastern blocks should not be accorded less weight than the opinions of Mr Kelman. Otherwise, he is critical of Mr Kelman’s opinions. [116] The Department, on the other hand, submits the opinions of Mr Kelman in the circumstances here are to be preferred. [117] Lord Russell, in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh46, cited by Heydon JA in Makita, at [59], said: The opinion expressed by an expert witness in any branch of technical science depends for its effect on, inter alia, his qualifications, skill and experience in that science. If it appears to be based on a sufficiency of research directed accurately and relevantly to a particular issue and to be so supported as to convince a Court of its fundamental soundness and applicability to the particular issue, a Court is entitled, although not obliged, to accept it, even if unsupported by any corroborative expert opinion. Secondly the defenders argued that in the absence of any counter evidence of expert opinion in the science professed by Mr Teichman the Court is bound to take his opinion as conclusive, and as decisive of the issue. I am clearly of opinion that that argument must be rejected as being contrary to the principles by which the rules of evidence are regulated, and as constituting an unwarrantable encroachment on the judicial function of the Court. I respectfully agree with your Lordship’s observations on that topic … .47 [118] It is not disputed by Mr Drynan that Mr Kelman is an expert in the field of vegetation survey and mapping. In addition to being awarded a Bachelor of Commerce degree by the University of Queensland, the University’s Department of Science, Engineering and Agriculture has determined his experience in the field and as a trainer in conjunction with the authorship of accredited programs in forest ecology and bush vegetation, and his academic record, are the equivalent of an undergraduate degree in vegetation ecology. [119] For more than 20 years, Mr Kelman has been employed as a Botanist, Ecosystem Survey and Mapping, Queensland Herbarium. His duties have included the creation of maps of vegetation communities and regional ecosystems. [120] Mr Kelman has the qualifications, skills and 23 years of experience in the field of vegetation survey and mapping to map the vegetation on the relevant parts of the northern and eastern blocks, and to express the opinions and conclusions he has in his 46 1953 SC 34 at 39-40. 47 Ibid, at [42]. -- 29 of 34 -- 30 statement of evidence. He gave evidence he assessed the vegetation on the relevant parts of the northern and eastern blocks in accordance with the VM Act, State Policy and Neldner report and in doing so he has had regard to the best available scientific knowledge and the precautionary principle and has applied approved operational policies and guidelines. I accept he did so. [121] In his statement of evidence and supplementary statement of evidence, he sets out in clear and concise terms the material to which he has had regard, the methodology adopted, a description of was done by him and Mr Ryan when they visited the northern and eastern blocks on 18 and 19 July 2022 and the results, the material facts on which his statement of evidence is based, his reasons for the opinions expressed in the statement and a summary of the conclusions reached by him. [122] He was an impressive witness when giving oral evidence. In cross-examination by Mr Drynan, he was responsive to the questions put to him and made concessions where it was appropriate to do so. [123] Mr Kelman’s evidence, both written and oral, appears to be based on a sufficiency of research directed accurately and relevantly to the assessment of the vegetation. It follows the Tribunal may accept Mr Kelman’s evidence but is not obliged to do so despite the absence of expert evidence to the contrary. [124] Mr Drynan, on the other hand, is not an expert in the field of vegetation survey and mapping. To the extent there is evidence about his assessment of the vegetation on the relevant parts of the northern and eastern blocks, I am not satisfied the assessment has been carried out in accordance with the VM Act, State Policy and Neldner report. It is apparent he has misunderstood what constitutes remnant vegetation within the meaning of the VM Act calling into question his opinions on the correct mapping of the vegetation. [125] Having said that, he has worked on the northern and eastern blocks for many years and is familiar with the vegetation on the blocks. His detailed evidence on the vegetation is not disputed by the Department. I have taken that evidence into consideration in deciding the application for review. [126] Mr Drynan is critical of Mr Kelman’s use and placement of transects to assess the abundance and height of vegetation and the use of reference sites. In his statement of evidence, Mr Kelman states that on 18 July 2022 he and Mr Ryan traversed and viewed each of the contested areas of the northern block and measured vegetation height and cover along eight one hundred metre transects in accordance with the regional ecosystem mapping methodology. The locations of the eight transects, he continues, were chosen for their representation of the vegetation in the localised area. [127] On 19 July 2022, he and Mr Ryan traversed and viewed each of the contested areas of the eastern block and measured vegetation height and cover along six one hundred metre transects , again in accordance with the regional ecosystem mapping methodology. The locations of the six transects were chosen for their representative of the vegetation in the localised area. [128] In re-examination by Dr McGrath, Mr Kelman stated he and Mr Ryan used the crown or line-intercept method in paragraph 2.4.1 of appendix 2 to the Neldner report to estimate crown cover and measured the height of the vegetation in accordance with paragraph 2.4.4, determined the ecologically predominant layer in accordance with -- 30 of 34 -- 31 paragraph 2.5.4 and the range of variation within the vegetation community in accordance with paragraph 2.5.5. [129] I am satisfied Mr Kelman’s use and placement of transects to assess the abundance and height of vegetation and the use of reference sites was in accordance with the QBEIS site data collection method in appendix 2 to the Neldner report and otherwise in accordance with the VM Act, State Policy and Neldner report. [130] Mr Drynan submits that, ‘… to the extent section 4.6.3 of the State Policy fetters the Department’s discretion in categorizing land for the [VM Act] by purporting to prohibit a decision to Categorize land as Category X, the section is invalid and that Category X mapping is a correct mapping.’ The section provides: In assessing an application for a PMAV, an area will be assessed first for suitability as Category B, then for suitability for Category C, then for Category R. An area will not be made Category X if it is identified as remnant, or as high value regrowth using the Queensland Herbarium’s published methodology. (Emphasis added) [131] The State Policy is authorised by, and made by the Minister under, section 10(1) of the VM Act. It is required to state outcomes for vegetation management and actions proposed to achieve the outcomes and special considerations for significant community projects and does so. The section does not ‘fetter’ a discretion; it in effect provides that if vegetation in an area is assessed as remnant or high value regrowth vegetation as defined in the schedule to the VM Act, the area will not be assessed as category X area. [132] The section contains policy, and the Department and the Tribunal must apply the policy. Mr Drynan’s submission the section is invalid is rejected. [133] Mr Drynan submits that in the absence of field work in about 2000, the vegetation in the relevant areas was not assessed in accordance with the Herbarium’s published methodology, the QBEIS site data collection method in appendix 2 to the Neldner report. He is mistaken. [134] Remnant vegetation is mapped using the Sentinel-2 and Landsat Thermal Mapper TM satellite imagery supplied by Geoscience Australian, as well as other orthorectified digital imagery as happened here. Mr Drynan challenged the imagery. Appropriately, the Department then carried out field work the results of which are now in evidence before the Tribunal. That evidence is part of the evidence on which the Tribunal must decide the application for review. [135] Mr Kelman, I am satisfied, has assessed the vegetation on the relevant parts of the northern and eastern blocks in accordance with the VM Act, State Policy and Neldner report. His process of reasoning is clear and understandable such that the Tribunal is able to adopt his opinions and conclusions. I am not satisfied Mr Drynan’s opinion on the mapping of the vegetation are factually and legally sound. For that reason and the reasons otherwise set out in these reasons for decision, I prefer the evidence of Mr Kelman over that of Mr Drynan and accept Mr Kelman’s opinion on the correct mapping of the vegetation on the relevant parts of the blocks. [136] Mr Drynan submits: (a) it is impossible to operate efficiently and economically use the land in pastoral uses; -- 31 of 34 -- 32 (b) it is next to impossible, even dangerous to try, to ride horses for mustering; (c) it is impossible to use quad bikes for mustering; (d) the increased work involved in keeping tracks trafficable and fences stock proof in the face of regrowth and ever-falling limbs and entire trees is immense; (e) the added workload in preparing for the controlled burning needed every two to three years on this type of country is immense, as is the added workload in closely monitoring burnt areas over a period of days to avoid unplanned and potentially uncontrollable fires being sparked by smoldering and slowly burning timber; and (f) with these burdens, it is impossible to survive in competition against others with similar land but who are free of vegetation clearing prohibition or regulation. The submissions lack detail. In the circumstances, the Tribunal is unable to assess whether they are relevant considerations to the mapping of the vegetation on the northern and eastern blocks. Summary and conclusion [137] Mr Drynan’s application for the making of a PMAV for part of the northern and eastern blocks, I find, should be assessed by the Tribunal on the material now before it and in accordance with the VM Act, State Policy and Neldner report. [138] I accept the evidence of Mr Kelman. The correct and preferable decision, in my opinion, is that the Department make a PMAV for the relevant parts of the northern and eastern blocks as recommended by Mr Kelman in his statement of evidence. [139] The Department does not seek costs. Order [140] The order of the Tribunal is as follows: 1. The internal review decision of the respondent made 4 December 2020 confirming a decision made by the respondent on 30 September 2020 on an application by the applicant under section 20C of the Vegetation Management Act 1999 (Qld) for a property map of assessable vegetation for part of four parcels of land: (a) lot 1 on WD 2104 located to the north of Rathdowney in South East Queensland and shown in figure 1 in the joint statement of agreed facts filed in the Tribunal by the parties on 1 April 2022 (‘joint statement of agreed facts’); and (b) lot 1 on RP 114424 and lots 21 and 22 on RP 47247 located to the east of Rathdowney and shown in figure 1 in the joint statement of agreed facts, (‘applicant’s land’) is set aside. 2. The respondent, pursuant to section 20C of the Vegetation Management Act, make a property map of assessable vegetation for the following parts of the applicant’s land: (a) for lot 1 on WD 2104, the areas containing non-remnant and high value regrowth vegetation identified in figure 13 in the statement by Daniel -- 32 of 34 -- 33 Thomas Kelman filed in the Tribunal by the respondent on 26 August 2022 (‘Mr Kelman’s statement of evidence’) with those areas to be identified on the property map of assessable vegetation as category X area and category C area respectively; and (b) for lot 1 on RP 114424 and lots 21 and 22 on RP 47247, the areas containing non-remnant and high value regrowth vegetation identified in figure 15 in Mr Kelman’s statement of evidence with those areas to be identified on the property map of assessable vegetation as category X area and category C area respectively. 3. There be no order in relation to costs. -- 33 of 34 -- 34 Schedule * Areas mapped as remnant until ground assessment is carried out. -- 34 of 34 --