Director, Fisheries Queensland, Department of Agriculture and Fisheries v Scooter Farm Pty Ltd [2020] QPEC 35 [2021] QPELR 471

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Director, Fisheries Queensland, Department of Agriculture and Fisheries v Scooter Farm Pty Ltd [2020] QPEC 35 PARTIES: DIRECTOR, FISHERIES QUEENSLAND, DEPARTMENT OF AGRICULTURE AND FISHERIES (applicant) v SCOOTER FARM PTY LTD ACN 126 403 923 (respondent) FILE NO/S: 2440 of 2019 DIVISION: Planning and Environment PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 10 June 2020, ex tempore DELIVERED AT: Brisbane HEARING DATE: 8 and 10 June 2020 JUDGE: Rackemann DCJ ORDER: Order as per amended draft CATCHWORDS: PLANNING AND ENVIRONMENT – ORIGINATING APPLICATION – where the applicant sought declarations about the lawfulness of development carried out by the respondent and orders in the nature of rehabilitation works – where the development occurred during the life of the Sustainable Planning Act 2009 (Qld) – where the applicant withdrew its application under section 180 of the Planning Act 2016 (Qld) for enforcement orders relating to the development – where the applicant sought orders, akin to enforcement orders, under section 11(4) of the Planning and Environment Court Act 2016 (Qld) – whether the orders sought were about the declarations or one or some of them – whether the Court has jurisdiction to make the orders sought by the applicant CASES: Benfer v Sunshine Coast Regional Council [2019] QPEC 6 Brooks Earthmoving & Quarries Pty Ltd v Lockyer Valley Regional Council [2019] QPELR 202 -- 1 of 7 -- 2 Caloundra City Council v Taper Pty Ltd & Anor [2003] QPEC 19 Lockyer Valley Regional Council v Macandrews Industries Pty Ltd & Ors [2019] QPEC 38 Mac Services Group Limited v Belyando Shire Council & Ors [2008] QPEC 11 LEGISLATION: Sustainable Planning Act 2009 (Qld) Planning Act 2016 (Qld) ss 180, 346 Planning and Environment Court Act 2016 (Qld) ss 11, 76 Integrated Planning Act 1997 (Qld) s 4.1.22 COUNSEL: J Dillon for the applicant K Wylie for the respondent SOLICITORS: Department of Agriculture and Fisheries for the applicant P&E Law for the respondent [1] By an originating application, the applicant sought declarations in relation to development which was carried out in 2016, and also sought orders which were in the nature of rehabilitation works. The declarations are to the effect that the development that was carried out was assessable development for which there was no effective development permit and was therefore unlawful. The development involved destroying or damaging marine plants in a tidal area. The rehabilitation works would be aimed at achieving the ultimate outcome of returning the tidal area to the marine characteristics that existed prior to the development. [2] The development was carried out during the life of the Sustainable Planning Act 2009 (SPA). By reason of section 11 of the Planning and Environment Court Act 2016 (PECA), read in conjunction with section 76 of that Act and section 346 of the Planning Act 2016 (PA), the Court has jurisdiction to entertain the declarations which relate to the interpretation of the SPA (in particular whether the work constituted operational work, development and assessable development under that Act) and the lawfulness of the development under that Act. -- 2 of 7 -- 3 [3] The originating application sought orders for the rehabilitation works pursuant to section 11 of the PECA which, in subsection 4, permits the Court to make an order about any declaration it makes. In the alternative, the orders were sought pursuant to section 180 of the PA which provides, in certain circumstances, for the making of enforcement orders where the Court considers that a development offence has been committed or will be committed unless an order is made. An enforcement order can be made to remedy the effect of the development offence in a stated way. Such orders can include orders to return anything to a condition as close as practicable to the condition the thing was in immediately before the development offence was committed. [4] Ultimately, the applicant withdrew its application under section 180 of the PA because it accepted the correctness of the decision of Kefford DCJ in Benfer v Sunshine Coast Regional Council [2019] QPEC 6. It is therefore accepted that, since any development offence in this case was one committed under the SPA, it is not one which can form the basis of an application for an enforcement order under section 180 of the PA. [5] On the first day of the hearing of this matter, the parties informed the Court that the matter had been resolved by way of agreement, as between the parties, subject to the preparedness of the Court to make the orders agreed to. The orders included declarations upon which I need not pause, save to observe that it has been agreed that one of the declarations ought be amended, and that the applicant wishes the declarations to be made irrespective of whether the Court is prepared to make the rehabilitation orders. The power of the Court to make the declaratory orders is not contingent on orders being made about those declarations, and I am prepared to make the declarations in their amended form. [6] The proposed orders included orders which would require the respondent to undertake a raft of measures in order to achieve rehabilitation, in order to address the impacts of the development which will be declared to be unlawful. I raised a concern as to whether those orders, which are at least akin to enforcement orders, are orders which the Court can make under section 11(4) of the PECA. The matter was then adjourned to today to afford the applicant an opportunity to prepare argument to address that -- 3 of 7 -- 4 concern. The respondent, acting in accordance with the agreement between the parties to resolve the matter, did not oppose the Court making the rehabilitation orders. It is necessary, however, for the Court to be satisfied that the orders are within the jurisdiction of the Court to make. [7] Although section 11(4) has been in force for some time and has been preceded by like provisions in former statutes, the extent of the jurisdiction which it provides to the Court has been the subject of relatively little judicial consideration. Some doubt or uncertainty was expressed about the breadth of its potential operation in Caloundra City Council v Taper Pty Ltd & Anor [2003] QPEC 19 at paragraph 90 and in Mac Services Group Limited v Belyando Shire Council & Ors [2008] QPEC 11 at paragraph 34. In Brooks Earthmoving & Quarries Pty Ltd v Lockyer Valley Regional Council [2019] QPELR 202, Long SC DCJ made some observations about the provision in the context of an application for orders excusing the lapsing of an approval, reviving the approval and amending it. His Honour said (footnote deleted): “[19] It is unnecessary to attempt to prescribe the precise limits of any power provided to the Court in s 11(4) and it may be accepted, as was contended for the applicant, that generally: “It is inappropriate to read a provision conferring jurisdiction or granting powers to a Court by making conditions or imposing limitations which are not found in the words used.” The problem, however, is in discerning any expression or implication of power from the generality of the provision, which is also capable of being viewed as simply making clear that the engagement of the jurisdiction of the Court to grant declaratory relief of the kind allowed in s 11(1), also enables consequential relief, as might otherwise be within the jurisdiction of the Court. It must be kept in mind that this Court is one of statutory creation and that its powers are to be gleaned from the statutory provisions providing it with jurisdiction to exercise, by express provision or necessary implication…” [8] More recently in Lockyer Valley Regional Council v Macandrews Industries Pty Ltd & Ors [2019] QPEC 38, Everson DCJ refused an application to strike out an originating application, or parts thereof, in a case where the applicant was seeking -- 4 of 7 -- 5 relief concerning alleged unlawful activity which included activity predating the commencement of the PA. His Honour considered that, in such circumstances, section 11(4) had work to do. The applicant’s approach in this case is consistent with the decision of His Honour. [9] It may be accepted that the word “about”, as used in the provision, is one of wide import. What the provision requires, however, is that the order be about the declaration or one or some of those that the Court makes. That calls for attention to be given to the declarations and to the nexus between them and the orders sought, to see whether the latter is about the former. In this case, the declarations are relevantly about the lawfulness of development carried out in 2016 and, in particular, about the lawfulness of the damage or destruction caused to marine plants. [10] The declarations are not, in terms, about any obligation to rehabilitate or any alleged failure of the respondent to carry out, or to properly carry out, any rehabilitation obligation or to otherwise address the impacts of the development. No such obligation is asserted. Further, the rehabilitation orders are irrelevant to the controversy resolved by the making of the declarations. The declarations are made relevantly, to resolve any controversy about the lawfulness of the development carried out in 2016. Whether rehabilitation is undertaken or not will have no bearing upon that question. Rehabilitation works will not render lawful that which is declared to be unlawful. [11] The rehabilitation orders would not give effect to the declarations nor have any identifiable affect on their effect. The rehabilitation orders are not truly consequential in nature. They do not relate to any obligation which arises or which would arise at law consequential upon the making of the declarations. It was not suggested that, in undertaking unlawful development, the respondent became subject to any obligation, at law, to effect rehabilitation. By seeking the rehabilitation orders the applicant is asking the Court not so much to declare a state of things and make orders about it, but to impose upon the respondent substantial new obligations which do not otherwise flow from the making of the declarations or from the unlawfulness to which they relate. -- 5 of 7 -- 6 [12] The rehabilitation orders are not properly categorised as orders about those orders made in the exercise of the Court’s declaratory jurisdiction, rather they represent orders sought by way of substantive further relief, of a different nature, in order to compel the respondent to address the impacts of the underlying unlawful conduct. The legislation provides for such relief, or relief of that kind, by way of enforcement orders under section 180. That the applicant cannot avail itself of that relief in the circumstances of this case does not justify the use of section 11(4) to make what is, in effect, a de facto enforcement order. [13] That is not to say that an order could not be made under section 11(4) to require a person to do something with respect to their land. It might well be, for example, that a declaration under section 11(1) will be about an obligation to do something or undertake some works with respect to land. In this case, however, the declarations relevantly are about the lawfulness of the development. And the proposed rehabilitation orders are not, in my view, orders about the declaration of the lawfulness of the development which was carried out in 2016. [14] In my view, that conclusion does not involve reading section 11(4) as subject to some unexpressed limitation nor does it involve a constrained interpretation of the word, “about”. Rather, it simply focuses upon the need for the nexus to be between the orders and the declaration or declarations. [15] It was submitted by the applicant that a broad construction of section 11(4) would best advance the purpose of the legislation by conferring a broad power to make consequential orders. It may be accepted that the purpose of section 11(4) was to confer the power to make consequential orders with respect to the Court’s declaratory power. But that does not, in my view, justify the use of section 11(4) to overcome the limits in section 180 so as to make orders in relation to remedying the impacts of the development offence when the only relevant subject matter of the declarations is the lawfulness or otherwise of the development. [16] The applicant also pointed to the statutory history of section 11, which counsel traced back to the Integrated Planning Act 1997, section 4.1.22 of which initially contained subsections which constrained the circumstances in which an order could be made about a declaration which amended or cancelled a development approval. Such orders -- 6 of 7 -- 7 could only be made if the Court was satisfied that the approval was obtained by fraud. The provision then went on to say that if the owner of the land is not the applicant and was not involved in the fraud, the Court must also make an order about compensation. Accordingly, the Court was given the express authority to make an order about compensation in relation to those limited kinds of orders about declarations. The provision was then subsequently amended in a way which required the Court to make the order it considered appropriate about any loss before the subsection was ultimately repealed. Counsel for the applicant pointed out that the explanatory note to the provision which repealed the subsection asserted that the repeal did not affect the Court’s powers and that it is likely that the Court would, as a matter of course, consider the compensation implications of any order. It was submitted that this exemplified the breadth of the power. [17] The history to which Counsel for the applicant pointed goes back to a provision which applied two statutory regimes ago. The explanatory note expressed a view about the effect of the repeal of the provision which, as Counsel for the respondent pointed out, may or may not have been correct. Further, it involved the fashioning of orders taking into consideration the effect of the orders and, particularly in those circumstances, having regard to the effect of declared invalidity and a consequential order cancelling a relevant approval. The situation here is different. What is sought to be done is to obtain orders which do not relate to the consequences of the declared unlawfulness of the development, but rather to the impacts of that development in respect of which the respondent currently has no obligations and would not have any such obligations by reason of the declarations. [18] In my view, it is not open to the Court, in the circumstances, to make the rehabilitation orders because they are not orders about the declarations which will be made. If I am wrong about that then there is no discretionary reason why I would refuse to grant the relief sought. -- 7 of 7 --