Dibb v Butterworth; Butterworth v Dibb [2023] QDC 239

DISTRICT COURT OF QUEENSLAND CITATION: Dibb v Butterworth; Butterworth v Dibb [2023] QDC 239 PARTIES: DIBB, Raymond (Defendant/Appellant /Respondent) v BUTTERWORTH, Simon (Complainant/Respondent/Appellant) FILE NO/S: Appeal No. 996 of 2022 DIVISION: Appellate Jurisdiction PROCEEDING: Section 222 Appeal ORIGINATING COURT: Magistrates Court at Holland Park DELIVERED ON: 15 December 2023 DELIVERED AT: Brisbane HEARING DATE: 8 September 2022 and 14 November 2022; Last written submissions received 17 November 2022 JUDGE: Devereaux SC CJDC ORDER: 1. The appeal against conviction, sentence and the making of the enforcement order is dismissed. 2. The complainant’s appeal against sentence is dismissed. 3. The orders of the learned acting magistrate are confirmed. 4. The parties are directed to attempt to agree on amended dates for the purposes of the enforcement order and file a joint submission and draft order to the effect of the agreement. Failing agreement, the complainant is to apply for orders upon 5 days notice to the appellant. CATCHWORDS: CRIMINAL LAW – criminal liability – mistake of law – where appellant cleared trees on his land, mistakenly believing he was entitled to because of the classification of the land – where land had been determined koala habitat area under the Nature Conservation (Koala) Conservation Plan 2017 – whether Criminal Code s. 22(3) applied to exclude criminal responsibility PLANNING AND ENVIRONMENT – Species and habitat protection – where appellant cleared trees on his -- 1 of 13 -- 2 land – where land had been determined koala habitat area under the Nature Conservation (Koala) Conservation Plan 2017 – where the appellant was fined, an enforcement order was made and the appellant was to pay costs – whether enforcement order appropriate – whether sentence inadequate CASES: McSweeney & Anor v Spiller [2020] QDC 48 Tseng v Brisbane City Council [2020] QDC 48 LEGISLATION: Criminal Code 1899 (Qld) Evidence Act 1977 (Qld) Justices Act 1886 (Qld) Local Government Act 2009 (Qld) Penalties and Sentences Act 1992 (Qld) Planning Act 2016 (Qld) Statutory Instruments Act 1992 (Qld) Vegetation Management Act 1999 (Qld) COUNSEL: The appellant / respondent was self-represented. A Edwards for the respondent / appellant. SOLICITORS: The appellant / respondent was self-represented. City Legal for the respondent / appellant. Introduction [1] After a two-day trial in the Magistrates Court at Holland Park, Mr Dibb was convicted, on 6 April 2022, of carrying out prohibited development. The learned Acting Magistrate imposed a fine of $10,000.00, made an enforcement order and ordered Mr Dibb to pay costs, including professional costs of $3,375.00. Mr Dibb appeals against the conviction, the sentence and the enforcement order. The complainant appeals against the sentence. [2] I will refer throughout these reasons to Mr Dibb as the appellant and Mr Butterworth as the respondent. [3] The complainant in the prosecution was “a delegate and authorised officer acting in his representative capacity, being a Principal Investigator, Compliance and Regulatory Services, Lifestyle and Community Services, Brisbane City Council”. [4] The appeals are brought under s. 222 of the Justices Act 1886 (Qld). The appeals are to be dealt with by way of re-hearing. The record is made up of the transcript of -- 2 of 13 -- 3 proceedings, the exhibits tendered and written admissions made in the Magistrates Court. [5] The charge was that the appellant carried out prohibited development between 29 June 2020 and 26 August 2020. The prohibited development was the clearing of casuarina trees on about 45,000m of the property owned by the appellant and his wife at Burbank. [6] Section 162 of the Planning Act 2016 (Qld) provides: A person must not carry out prohibited development, unless— (a) the development is carried out under a development approval given for a superseded planning scheme application; or (b) the local government for the area in which the development is carried out has agreed, or is taken to have agreed, to a request under section 29(4)(b) for the development. Maximum penalty—4,500 penalty units. [7] That neither of the exceptions in s. 162 applied was proven by evidentiary certificate under section 57 of the Planning Act. And the appellant formally admitted that he organised, controlled, supervised and paid for the clearing of the casuarina trees and that the Brisbane City Council had not given approval for the clearing of Casuarina trees on the land. [8] By the dictionary in Schedule 2 of the Planning Act – development means— (a) carrying out— (i) building work; or (ii) plumbing or drainage work; or (iii) operational work; or (b) reconfiguring a lot; or (c) making a material change of use of premises. operational work means 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. premises includes— ….. (b) land, whether or not a building or other structure is on the land. [9] The development was particularised as operational work, namely the clearing of vegetation. [10] As the learned Acting Magistrate found, the clearing of 45,000 square metres of vegetation was operational work materially affecting the premises. Mr Dibb admitted he “carried out” the work. -- 3 of 13 -- 4 [11] It is particularised that the development was prohibited because it involved interfering with koala habitat on the premises, by removing various native trees. [12] Part 10 of Schedule 10 of the Planning Regulation 2017 applies to the premises because they were in the SEQ Region.1 [13] Item 16A of Part 10 of Schedule 10 provides: 16A Prohibited development—development interfering with koala habitat in koala priority area and koala habitat area Development is prohibited development to the extent the development involves interfering with koala habitat in an area that is both – (a) a koala priority area; and (b) a koala habitat area. (1) However, subsection (1) does not apply to the extent the development – (a) is exempted development; or ….. The terms interfering with koala habitat, koala habitat area and koala priority area are defined in Schedule 24 of the Regulation. For the last two terms, the reader is referred to the Nature Conservation (Koala) Conservation Plan 2017 sections 7A and 7B. They provide that the chief executive may determine that an area in a koala district is a koala priority area (s. 7A) or a koala habitat area (s. 7B). [14] That the chief executive had so determined was proved by evidentiary certificate under s. 251 of the Local Government Act 2009 (Qld) to which was attached a plan entitled Koala Habitat Mapping as at 29 June 2020. [15] In this way, subject to item 16A(2) of Part 10 of Schedule 10 of the Regulation, the charge was proven. [16] Subsection 16A(2) provides - (1) However, subsection (1) does not apply to the extent the development (a) is exempted development; or (b) is assessable development under section 16C; or (c) is in an identified koala broad-hectare area and is- (i) accepted development, or assessable development, under a local categorising instrument, other than development that is for an extractive industry and is not assessable development under section 16C; or (ii) reconfiguring a lot that is assessable development under part 14, division 1, section 21; or (d) is carried out under a development permit given for an application that was properly made before 7 February 2020; or (e) is consistent with a development approval- (i) in effect for the premises on which the development is carried out; and 1 Planning Regulation 2017 Schedule 10 Item 16 -- 4 of 13 -- 5 (ii) given for an application that was properly made before 7 February 2020. [17] The prosecution pleaded the negative of the items in item 16A(2)(a) to (e). It thereby relied on section 76 of the Justices Act 1886 (Qld) with the result that the appellant was “called upon to prove the affirmative thereof in the defendant’s defence.” [18] In this way, the prosecution proved the commission of the offence beyond reasonable doubt. [19] Although the Notice of Appeal includes 9 grounds of appeal, the issues may be grouped as follows: 1. The ‘no notification’ issue 2. State agency the proper enforcement authority 3. Refusal to allow evidence intended to discredit the koala habitat classification 4. The unjust imposition of the enforcement order There was notification of the legislation which created the offence [20] The clearing of vegetation occurred on days between 29 June and 3 July inclusive and on 17 August 2020. As early as February 2021, in an answer to a Show Cause Notice, the appellant wrote that he and his wife mistakenly understood they were entitled to deal with the land as they did because the clearing was exempt development. The belief was based on enquiries made on 31 August 2015 of the Department of Natural Resources regarding clearing casuarina trees. The advice was that the clearing was not restricted because the property was in a Category X area, as shown on a Regulated Vegetation Management Map order on 31 August 2015. The appellant also wrote that he and his wife were open and transparent with their neighbours, ensuring there were no objections, took care in the clearing and clean up including obtaining a fire permit. The document was before the court: Exhibit 15, tendered by the prosecution. [21] The appellant repeated these matters in his evidence. [22] The learned Acting Magistrate inquired, as I did at the hearing of the appeal, as to the significance of the category and whether the appellant’s assertions were contested. The prosecutor’s response was not to engage on the issue because they were separate legislative schemes. [23] For freehold land, clearing vegetation in a category X area is exempt clearing work: Planning Regulation 2017 Sch 21 s. 2(d); Schedule 24 definition of exempt clearing work and definition of prescribed land. [24] By reference to the Vegetation Management Act 1999 (Qld) (VMA) sections 16, 17, 20B, 20F, 20AK and the definition of information notice in the Schedule Dictionary, the appellant submits the power of the minister to prepare a declaration that a stated -- 5 of 13 -- 6 area is an area of high nature conservation value, which may be given effect by the Governor in Council so declaring by gazette notice and result in the chief executive preparing a PMAV of the declared area, requires the minister to have given each landowner notice of the proposed declaration and required the chief executive to give each land owner notice about the decision to make the PMAV. [25] The appellant and his wife were given neither notice. [26] It was the appellant’s submission that he had not received notice that his land had been re-classified and could not have been aware of the chief executive’s determination that the land was in a koala priority area and a koala habitat area. [27] First, it must be noticed that the definition of prohibited development in s. 16A(1), which informs the charge under s. 162 of the Planning Act, does not apply to the extent the development is exempted development, not exempt clearing. Were the land still in category X, the clearing would have, at least arguably, been exempt clearing work. [28] The relevant part of the definition of exempted development in Schedule 24 of the Regulation is – (n) development that is or involves operational work that is the clearing of native vegetation in a koala habitat area if the clearing— (i) is on freehold land and is for a forest practice; or [29] The appellant’s clearing was not said to be for a forest practice. [30] In an addendum outline, the Council has identified items (k), (m) and (p) as other possibly relevant parts of the definition of exempted development and submitted that none applies. I accept that submission. [31] The Council also submits, in the addendum outline, that the provisions of the VMA the appellant refers to require notice of a change of classification only where there has been a prior Property Map of Assessable Vegetation (PMAV) or when a new PMAV was to be created and there was no evidence that his land was subject to a PMAV. [32] The appellant replies that s. 20B of the VMA permits the chief executive to make a PMAV if the area becomes a declared area; a declaration had been made and notice would have been required of the PMAV. [33] It is unnecessary to consider these arguments further. The position is tolerably clear. The tree clearing was not exempted development. Subject to the Criminal Code 1899 (Qld), s.22, the offence is established. [34] Section 22 provides: (1) Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence. -- 6 of 13 -- 7 (2) But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by the person with respect to any property in the exercise of an honest claim of right and without intention to defraud. (3) A person is not criminally responsible for an act or omission done or made in contravention of a statutory instrument if, at the time of doing or making it, the statutory instrument was not known to the person and had not been published or otherwise reasonably made available or known to the public or those persons likely to be affected by it. (4) In this section— publish— (a) in relation to a statutory instrument that is subordinate legislation— means notify in accordance with section 47 (Notification) of the Statutory Instruments Act 1992; and (b) in relation to a statutory instrument that is not subordinate legislation—means publish in the gazette. [35] Section 47 of the Statutory Instruments Act provides: (1) Subordinate legislation other than exempt subordinate legislation must be notified by publication on the Queensland legislation website (normal publication) of— (a) the subordinate legislation; and (b) the date of publication. [36] As the respondent sets out in submissions, the Office of the Queensland Parliamentary Counsel website confirms, “by publication on this website”, that the Nature Conservation and Other Legislation (Koala Protection) Amendment Regulation 2020 was notified on 7 February 2020. It was, thus, published. That regulation introduced s.16A into Schedule 10 Part 10 of the Planning Regulation 2017. [37] Judicial notice must be taken of when and how every item of subordinate legislation was notified: Section 43(f) Evidence Act 1977 (Qld). The learned Acting Magistrate took judicial notice of the notification and also considered that it was not reasonable to clear 45,000 square metres of land without first inquiring whether it was legal or acceptable to do so. [38] The appellant submits that the regulation imposes “a prohibition on certain defined properties that landowners could not possibly know of without being notified, with such prohibition attaching a strict liability burden and potentially severe financial penalties”. With some sympathy for the appellant’s submission, the learned Acting Magistrate’s conclusion was, with respect, correct. The conviction was sound. The complainant was a competent complainant [39] The appellant gave evidence of the history of relations between himself and the Brisbane City Council and contrasted it with his communications with the Department of Natural Resources (DNR). -- 7 of 13 -- 8 [40] His evidence included the following. On 3 February 2021, he contacted DNR and spoke to a person named Maria. His purpose was to inform the department of a discussion had in August 2015 whereby he was told he could clear the back of his property because it was classified X. He advised Maria of the clearing work done in 2020 (the subject of the charge), and sought to submit an enforceable undertaking to formalise his rehabilitation plan. He did not know what he now presumes, that the land was reclassified from X to C. Since the clearing he had planted trees and planned to plant more. (The appellant tendered an order dated 13 July 2020 he had placed for 100 eucalypt trees which, he said, are primary koala habitat trees. Upon being contacted by the Council, he did not proceed with the purchase.) On 25 February 2021, he missed a phone call from a person named Kelly from DNR. He called her back. Kelly told him the department had concluded there was no requirement to do anything. During submissions at the hearing the appellant explained this to mean: in the circumstances they said a voluntary enforceable undertaking by me with the department was unnecessary. After he received the summons charging him with the offence in question, he contacted the DNR again on 23 July 2021 and spoke to Kelly again and then a different person in August 2021. The communications seem to have only gone so far. [41] The argument was, in short, that the State, being the enforcement authority, and having concluded as outlined above, was the proper authority to bring any prosecution. Again, with some sympathy for the appellant’s view of the situation, this point must fail. Section 174 of the Planning Act provides, relevantly, that any person may bring offence proceedings in a Magistrates Court on a complaint to prosecute a charge under s. 162. Subsection 174(3), which provides that only the enforcement authority may bring proceedings for certain offences, does not apply. The learned Acting Magistrate was correct not to go behind the “Koala habitat” determination [42] The appellant gave evidence and made submissions about the effect of the casuarina tree and the correctness of the classification of the land. During argument on this topic the learned Acting Magistrate said, “… and you’re saying, “Well, it’s not really koala habitat, because of the vegetation” or because of whatever reason, but that doesn’t matter. It’s not up to you to designate it. It has already been designated.” [43] Although ‘koala habitat’ is defined in Schedule 2, the Dictionary of the Nature Conservation (Koala) Conservation Plan 2017, as mentioned above, it is for the chief executive to determine that an area be a koala priority area or a koala habitat area: see sections 7A and 7B of the Plan. It is not relevant, in proof of a charge under s.162 of the Planning Act, whether the determination was well founded. An owner of land -- 8 of 13 -- 9 may ask the chief executive to amend or revoke a determination made under section 7B in relation to the land.2 The decision [44] The learned Acting Magistrate’s reasons for decision was suitably brief and concise given the narrow issues in the trial. The reasons noted the formal admissions made by the appellant and the elements of the charge. I have already referred to the reasons concerning s.47 of the Statutory Instruments Act 1992 (Qld) and s.43(f) of the Evidence Act and, like the learned Acting Magistrate, conclude that the evidence proves the offence beyond reasonable doubt. The learned Acting Magistrate referred to some aspects of the evidence, which might be relevant to the question of sentencing, including that witnesses saw trees ready for planting and already planted after the clearing of the property; that the dominant tree species was Casuarina but there was some Eucalyptus in the stockpiles of cleared trees; and that although the prominent Casuarina tree may not be the preferred tree of a koala, Casuarina trees were still a habitat and offered benefits such as shade and provide corridors for koalas to travel. The sentence [45] In reaching the appropriate penalty, the learned Acting Magistrate took into account the admissions made at an early stage by the appellant. The Acting Magistrate found that the appellant did not receive a commercial benefit and had “no actual knowledge that what you did was illegal, but your refusal to make enquiry was, in effect, turning a blind eye.” The appellant’s financial position was that he was impecunious. The learned Acting Magistrate found that the appellant “held a genuine but perhaps mistaken belief that what you were doing was for the improvement of the land.” Yet it was unacceptable for the land holder, without first making enquiry, to clear 45,000 square metres. The learned Acting Magistrate imposed a fine which was acknowledged to be far less than that sought by the prosecution because of the factors outlined in the appellant’s favour. The learned Acting Magistrate acknowledged that the fine of $10,000.00 could only be described as a very large “perhaps insurmountable” amount for the appellant. [46] Section 48 of the Penalties and Sentences Act 1992 (Qld), relevantly provides: (1) If a court decides to fine an offender, then, in determining the amount of the fine and the way in which it is to be paid, the court must, as far as practicable, take into account— (a) the financial circumstances of the offender; and (b) the nature of the burden that payment of the fine will be on the offender. … 2 Nature Conservation (Koala) Conservation Plan 2017 s. 7C -- 9 of 13 -- 10 (3) In considering the financial circumstances of the offender, the court must take into account any other order that it or another court has made, or that it proposes to make- (a) providing for the confiscation of the proceeds of crime; or (b) requiring the offender to make restitution or pay compensation. [47] After the sentence was imposed the prosecutor applied for an enforcement order under s.176 of the Planning Act. This was adjourned to 3 May 2022. [48] The appellant has submitted the learned Acting Magistrate should have imposed no fine and has appealed against the making of the order under s.176. The respondent has appealed against the sentence. [49] The respondent attacks the exercise of discretion on the basis that the result was manifestly inadequate and/or the Magistrate erred in finding that the respondent was impecunious and reducing the penalty on that basis. On appeal, as before the learned Acting Magistrate, the respondent refers to the reasons of Robertson DCJ in McSweeney & Anor v Spiller [2020] QDC 48 where His Honour listed certain factors to be taken into account when formulating the penalty for a development offence, including: (a) the period of time over which the offence has been committed; (b) whether or not the offender has had prior notice from the relevant local authority of the unlawfulness of its actions; (c) the scale and commerciality of the unlawful use; (d) any other conduct (apart from (b)) which suggests a wilful disregard of planning laws; (e) previous convictions for like or similar offences; (f) the potential for environmental harm, and interference with the cultural, economic, physical and social wellbeing of other people in the particular community. [50] On appeal, the respondent submits: • that the scale of the offending and the fact the appellant was on notice of the wrongness of his conduct make this a serious example of the offence; • the area which was cleared was large, greater than 46,000 m 2 of koala habitat and that environmental harm was not just potential but done; • to remediate the damage would take an enormous amount of rehabilitative work; • the appellant proceeded to trial and has therefore not demonstrated remorse; and -- 10 of 13 -- 11 • the vegetation was mapped at “high ecological significance, as well as koala priority area and koala habitat area for conservation and protection”. [51] The respondent properly emphasises the need for general deterrence. The difficulty with the general deterrence argument is that, as the learned Acting Magistrate accepted, based on submissions of the prosecutor, the appellant genuinely believed on rational grounds that he could do what he did and did so without secrecy. [52] The only evidence that the appellant removed vegetation while on notice was that dead trees were removed or felled. These were of the Eucalyptus species. The appellant asserts in his material that after 23 July 2020, he cleared four dead and hollowed standing scribbly gums. One fell on its own from the roots. [53] Before the learned Acting Magistrate, the prosecutor referring to Judge Robertson’s list, submitted that the period of time over which the offence had been committed was not long – a matter of five occasions; that the appellant was on notice that there would “at least be issues”, but it was “immediately recognised that, as at 2015, he had the view, it would seem correct, that he was entitled to do what he did – later did.” [54] The prosecutor submitted to the Acting Magistrate: • that the scale of the clearing was a prime sentencing consideration but that there was not commercial aspect to the clearing; • there was actual harm which would require enormous amount of rehabilitative work that will take some time. It was not submitted that there was any conduct which suggested a wilful disregard of planning laws nor that the appellant had previous convictions for similar offending. [55] The appellant, in written submissions to the learned Acting Magistrate, said he was aged 67, having retired in 1996 due to health conditions; he was a self-funded retiree not entitled to a pension because he and his wife exceeded the assets test; they have children and grandchildren; he is a Justice of the Peace; the clearing was not done covertly as all the neighbours were first informed and the clearing was done over the six days; he did not wilfully disregard planning laws. [56] The prosecution before the learned Acting Magistrate relied only on one case - Tseng v Brisbane City Council [2020] QDC 48. The respondent submits that it was a case of less serious environmental offending where a sentence by way of $40,000 fine was upheld. The appellant refers to Judge Barlow KC’s note at [128] of Tseng’s “blatant and ongoing disregard for the law, her lack of remorse for and insight into her offences and potentially serious damage to the environment” to distinguish that case from the present. Counsel before the learned Acting Magistrate, while submitting that the “conventional discount” for a plea of guilty and insight and remorse was not available because there had been a trial, submitted that from a very early point it was at least reasonably obvious that the issues to be raised by the appellant were legal ones and -- 11 of 13 -- 12 the admissions made, formally and otherwise, dramatically refined the scope of the facts in issue for the trial itself. Counsel before the learned Acting Magistrate sought a fine commencing at $70,000 “subject to factors in litigation”. [57] Proof of the offence required only proof that the chief executive had determined the area was, eg, koala habitat. For the purpose of sentencing, the prosecution asserts serious environmental damage was committed. Short of the appellant’s attempts to tender evidence of opinion about the unsuitability and destructive nature of casuarina trees as koala habitat, the evidence that the part of the map that covered the appellant’s land included that scribbly gums were a source of koala food, that casuarinas provide shelter and passageway. [58] In the particular and most unusual circumstances of this case and taking into account that an enforcement order was made, I am not satisfied it has been shown that the learned Acting Magistrate’s fine of $10,000 was plainly wrong. The enforcement order [59] The appellant carried out the prohibited development in July and August 2020. The complaint was made on 8 July 2021. The appellant was convicted on 6 April 2022. The enforcement order was made on 3 May 2022. It was stayed by a judge of this Court on 3 June 2022. [60] The enforcement order is out of date. Even at the time of the trial the appellant produced evidence of, what he submitted was, the start of the rehabilitation of the land. [61] The appellant advanced arguments that the order was unnecessary, illogical because to return the land to its earlier state would be to replant troublesome trees which depleted the soil, would be unfair given his apparent settling of the issues with a State government department, would result in improvement of the property beyond power and beyond his means. [62] Section 176 of the Planning Act provides that a Magistrates Court after hearing offence proceedings may make an order for the defendant to take stated action within a stated period. One of the examples given is “to restore, as far as practicable, premises to the condition the premises were in immediately before the development was started.” The enforcement order may be made in addition to the penalty imposed or any other order under the Act (s.176 (4)). Contravention of the enforcement order carries a penalty of 4,500 penalty units or two years imprisonment. [63] During the hearing of the appeal, I expressed concern about the terms of the order which required the appellant to submit a plan for the approval of the Brisbane City Council. I am satisfied the order as presented to the learned acting magistrate was sufficiently final and certain to be an appropriate application of subsection 174(2) of the Planning Act, that is, the terms are appropriate to secure compliance with the Act. The essence of the order is, properly, that a plan be developed for the restoration of the ecological values lost in the commission of the offence. I notice also that the -- 12 of 13 -- 13 obligation to carry out the plan arises only upon approval by the Council. It is appropriate that the agreement of the Council be required, it being the local planning authority. [64] In all the circumstances of the case I agree with the making of the order. It is not easy to articulate the actual values lost to the land by the felling of the trees – perhaps it is potential shelter and passageway for koalas - but those values should be restored. [65] In all respects, I confirm the orders of the learned acting magistrate. -- 13 of 13 --