Davis v Department of Natural Resources and Mines [2015] QCAT 301

CITATION: Davis v Department of Natural Resources and Mines [2015] QCAT 301 PARTIES: Phyllis Joan Davis (Applicant) v Department of Natural Resources and Mines (Respondent) APPLICATION NUMBER: GAR161-13 MATTER TYPE: General administrative review matters HEARING DATE: 15 August 2014 HEARD AT: Mackay DECISION OF: Member Beckinsale DELIVERED ON: 31 July 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Respondent made 18 April 2013 pertaining to Lot SP252790 that the western and middle polygon is Endangered Regional Ecosystem 8.12.27b and the eastern polygon is Endangered Regional Ecosystem 8.3.2 is set aside. 2. The whole of Lot SP252790 is Endangered Regional Ecosystem 8.12.27b and the Respondent shall issue a replacement certified PMAV to reflect that finding. CATCHWORDS: General administrative review - review sought by land owner of decision of Department of Natural Resources and Mines to issue replacement PMAV showing lot contains an Endangered Regional Ecosystem-owner contends that a later, not current Regional Ecosystem Description Database was incorrectly applied upon internal review to assess the Regional Ecosystem of the Lot Vegetation Management Act 1999 (Qld) Schedule Dictionary, ss 3(1), 3(1)(a)(i), 3(1)(d), -- 1 of 10 -- 2 3(2), 3(2)(d), 20AK(1), 20AK(2), 20C, 20CA, 20D, 63, 63A(1)-Sustainable Planning Act 2009 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 20(1), 20(2), 24(1) APPEARANCES: APPLICANT: John Gunn, Natural Resource Management Consultant on behalf of the Applicant RESPONDENT: Lana Alty, Department of Natural Resources and Mines and Decision Maker, on behalf of the Respondent PRELIMINARY The Applicant applied for an adjournment of the hearing on the basis that submissions around policy had been made to the Minister for Natural Resources and Mines and should the matter be determined by the Tribunal prior to the Minister’s response, the Applicant would experience a “gross inequity”. The Tribunal did not allow an adjournment finding that the Applicant would not suffer an injustice for the matter to proceed. REASONS FOR DECISION Background [1] Mrs Phyllis Davis is the owner of a parcel of land of 19.39 hectares described as Lot 2 on SP2527901 situated west of Armstrong Beach south of Mackay. She wishes to develop the land for housing. [2] The Vegetation Management Act 1999 (Qld) (VMA) regulates the clearing of vegetation2. The VMA describes regional ecosystems and their vegetation management status. The regulations to the VMA list the vegetation management status of regional ecosystems which may be categorised as “Endangered”, “Of Concern” or “Of Least Concern”. The vegetation management status of a property affects an application for development. Property with “Of Least Concern” status is more likely to be granted development approval with other categories resulting in more difficulty and greater expense which may be due to offset requirements. 11 Throughout most of the Applicant’s documentation the parcel is referred to as Lot 2 on SP225094. The reason for the different descriptions was not addressed at the hearing but I am satisfied from the many photographs, drawings and plans produced by both parties that the same lot was being referred to by both but that an incorrect description has been used. 2 Vegetation Management Act 1999 (Qld) s 3(1). -- 2 of 10 -- 3 [3] The Queensland Herbarium maintains the Regional Ecosystem Description Database (REDD) which contains regional ecosystem numbers and descriptions of the Regional Ecosystems. [4] Under the Sustainable Planning Act 2009 applications for development of property with mapped with remnant vegetation as defined in the VMA3 must be referred to the Department of Natural Resources and Mines (DNRM), previously the Department of Environment and Resource Management (DERM). [5] A “property map of assessable vegetation” (PMAV) is a map certified by DNRM as a PMAV for an area showing the vegetation category for the area.4 The map may also show for the area the location of the boundaries of, and the regional ecosystem number for, each regional ecosystem in the area.5 An owner of land may apply to DNRM to make a PMAV6 or to make a replacement PMAV for the area.7 [6] In July 2011 Mrs Davis applied to (then) DERM to make what Mr Gunn said was a new PMAV under section 20C of the VMA. The application was made on a DERM form citing section 20C. Ms Alty said as there was an existing PMAV8 for the land the application by Mrs Davis was for a replacement PMAV under section 20D. In any event, the parties agreed that the distinction does not matter for the purpose of this review. [7] Mrs Davis received a PMAV offer from (by then) DNRM in November 2012 and DNRM issued a Certified PMAV on 12 February 2013. In March 2013 Mrs Davis requested an internal review9 of the decision to make that PMAV. [8] The delegated decision maker, Lana Alty, amended the original decision by notice dated 18 April 2013 and replaced the existing PMAV to reflect that amendment. [9] Mrs Davis has applied to the Tribunal for a review of that decision. Tribunal Review Jurisdiction [10] The jurisdiction of the Tribunal to review this matter is provided by section 63A(1) of the VMA with section 24 of the Queensland Civil and Administrative Act 2009 outlining what the Tribunal may do on review. The Tribunal must hear and decide the matter by way of a fresh hearing on the merits10 to produce the correct and preferable decision11. The Tribunal 3 Vegetation Management Act 1999 (Qld) Schedule Dictionary. 4 Ibid s 20AK(1). 5 Ibid s 20AK(2). 6 Ibid s 20C. 7 Ibid s 20D. 8 Ms Alty produced PMAV 2009/009600 originally created 10 November 2010. She referred to an administrative error occurring at the top of the Information Notice referencing section 20CA (being for a new PMAV as opposed to a replacement PMAV). 9 Ibid s 63. 10 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(2). -- 3 of 10 -- 4 may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and refer it back to the decision- maker12. Applicant’s Position [11] DERM had mapped the property in question in three sections, or polygons, and as containing two Endangered Regional Ecosystems. The eastern polygon was mapped as RE 8.3.2, the western polygon as RE 8.12.27b and the central polygon as REs 8.12.12d/8.12.27b 85/15%. [12] In July 2011, an assessment by environmental planning and natural resource management consultant John Gunn, on behalf of Mrs Davis, contended that the regional ecosystem and remnant mapping was incorrect as regards both the endangered regional ecosystems. [13] Mr Gunn is the proprietor of Earth Environmental. He attended the launch workshop of The Conservation Status of Queensland’s Bioregional Ecosystems in Mackay13 which work provided the methodology used to describe and determine land zones and regional ecosystem mapping and descriptions across Queensland’s bioregions14 and he has used the regional ecosystem descriptions as updated from time to time in his profession. [14] Mr Gunn contended that the vegetation community on the property mapped as RE 8.12.27 did not fit the description of RE 8.12.27 due to the absence of Livistona decora in the dominant canopy (the T1 layer). He further contended that the vegetation community on the property mapped as RE 8.3.2 did not fit the description of RE 8.3.2 as the correct land zone ought to have been land zone 12 (acid volcanics - Mesozoic to Proterozoic igneous rocks) whereas land zone 3 (alluvium – Quaternary alluvial systems) was incorrectly applied. [15] On internal review Ms Alty did not alter the assessment of the eastern polygon as RE 8.3.2 nor the assessment of the western polygon as RE 8.12.27b but she did assess the central polygon as containing RE 8.12.27b 100% instead of REs 8.12.12d/8.12.27b 85/15%, which meant the western and central polygons could be merged. [16] Mr Gunn raised concerns with the process taken by DNRM. He says that after Mrs Davis received the PMAV offer from DNRM in November 2012, the offer was not accepted. Instead, she queried the offer in relation to lot 2 and in January 2013 submitted that errors had been made in the draft PMAV, especially the interpretation of the RE descriptions. 11 Ibid s 20(1). 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24(1). 13 Sattler, P.D. and Williams, R.S. (eds) 1999, Environmental Protection Agency, Brisbane. 14 As described by Stanton and Morgan, 1997. -- 4 of 10 -- 5 [17] However, DNRM issued a Certified PMAV dated 13 February 2013 in relation to Lot 2 under cover of a letter referring to the PMAV as being “consistent with your agreement” when no agreement was ever given and without any reference to the errors in interpretation suggested. [18] Mr Gunn submitted that the internal review by DRNM was “significantly flawed as it did not review the original decision/s in light of the original information but rather added new information in an attempt to justify the original decisions, which were based on assumptions, opinions, feelings, and ‘concealed’ information rather than on the technical descriptions of land zones and regional ecosystems that were available in the public domain.” [19] 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 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. [20] Mr Gunn said he based his assessment on Regional Ecosystem Description Database REDD version 6.0b (2009) which has a description for RE 8.12.27b, which he said, describes three species that must be present in the dominant layer, including Livistona decora: 8.12.27b Eucalyptus tereticornis, Corymbia tessellaris, Livistonia decipiens15+_rainforest pioneering spp. open forest. Occurs on low hills on Mesozoic to Proterozoic igneous rocks. [21] Mr Gunn submitted that this version of REDD is the appropriate version to apply to an assessment of the RE of Lot 2 SP272590 because it was the version current at the date the application for a replacement PMAV was submitted to DERM in July 2011. He submitted that whilst there were various amendments to version 6.0b, there were no changes to the Vegetation Management Regulations to validate the amendments until December 2013. He said the RE descriptions used by DNRM only existed in the data that the Queensland Herbarium held and the only “realistic” approach is to use the regulated descriptions. [22] Mr Gunn said that REDD version 6.1 (published February 2013) and the current REDD version 8 (published November 2013) varied significantly from RE version 6.0b (2009) in that there was no longer a requirement for the three species to be present in the dominant layer. He agreed that according to these REDD versions, the whole of lot 2 SP252790 fits within the description of RE 8.12.27 and would be classed as an Endangered Regional Ecosystem. As noted, he argued they are not the versions which apply because Mrs Davis had applied for a replacement PMAV in July 2011. 15 The species commonly known as the cabbage tree palm was previously classified as Livistona decipiens but is now Livistona decora. -- 5 of 10 -- 6 [23] Mr Gunn’s contention that REDD version 6.0b (2009) should apply and his interpretation of the description of RE 8.12.27 as requiring the presence of Livistona decora in the dominant layer, were supported in the written evidence of botanist, Grant Paterson. Mr Paterson is currently in private practice but held the position (and was the first to do so) of Vegetation Management Officer with the then DERM. He was also the first appointee as Senior Vegetation Management Officer for the Central-West Region of DNRM. He attests that he regularly provides advice as to the identification of Regional Ecosystems. Mr Paterson also attended the launch workshop of the Conservation Status of Queensland’s Bioregional Ecosystems in Mackay and has used the regional ecosystem descriptions, as updated from time to time in his profession. [24] In a Joint Expert Report Mr Paterson agreed with Mr Gunn that under REDD versions 6.1 and 8, lot 2 SP252790 fits within the description of RE 8.12.27. [25] Mr Paterson was also critical of the process of assessment and review of Mrs Davis’ application for a replacement PMAV. [26] Mr Paterson stated his view that Livistona decora is a common palm species in the Central Queensland Coast Bioregion frequently found as a juvenile plant in the understorey in many regional ecosystems and is only mentioned in an RE description when prominent in the described layer. In his view because Livistona decora is a fast growing species and its fruit easily transported by birds and flying foxes, the presence of a small number of Livistona decora in secondary tree and shrub layers cannot be determined to be a definitive characteristic of a Regional Ecosystem. [27] Unlike Mr Gunn who visited lot 2 SP252790 on a number of occasions to undertake his assessment, Mr Paterson has not seen the site but formed his opinions from the materials provided to him on behalf of Mrs Davis. The Respondent’s Position [28] Ms Alty said at the time she conducted the internal review the Vegetation Management Regulation (VMR) current (as at 2 December 2013) in regards to Regional Ecosystem 8.12.27 provided: Corymbia tessellaris and/or Eucalyptus tereticornis+_C. intermedia+_C. clarksoniana open forest with a secondary tree layer of Livistona decora on low hills on Mesozoic to Proterozoic igneous rocks. [29] That description does not include Livistona decora in the dominant layer. Even so, Ms Alty said that she did not agree with Mr Gunn’s interpretation that the Regional Ecosystem short description of the VMR for Regional Ecosystem 8.12.27 in force at the date the application for the PMAV was lodged by Mrs Davis requires Livistona decora to be in the predominant layer. She said the short description merely lists species which must or may be present without reference to layers. She said the REDD and the Queensland Herbarium Regional Ecosystem mapping is merely evidence -- 6 of 10 -- 7 considered and given due weight by DNRM when undertaking PMAV assessments. [30] Ms Alty said DNRM undertook a field inspection on 8 April 2013 for the internal review. She says amongst other things, the DNRM officers took way points (Eastings and Northings) and tree heights for the majority of all Livistona decora in the polygons the subject of dispute. Her evidence is that the field notes recorded a definite presence of Livistona decora with a few specimens recorded as 8-9 metres in height marked by the field officers as “T1”. She said this “ground truthing” data was collated and provided to the bioregional coordinator, Jeanette Kemp at the Queensland Herbarium for expert opinion as to the correct Regional Ecosystem mapping for the areas the subject of the internal review. [31] In consideration of the evidence gathered by DNRM officers, including the expert opinion provided by the Queensland Herbarium and the updated Regional Ecosystem mapping, at that stage version 6.1, she was of the view the western and middle polygons comprised RE 8.12.27b and that the eastern polygon continued to comprise RE 8.3.2 and amended the original decision accordingly. [32] The expert witness on behalf of DNRM was Hendricus Dillewaard. Mr Dillewaard has been employed by the Department of Science, Information Technology, Innovation and the Arts as a Principal Botanist for the Queensland Herbarium since 2003. In that role he provides responses to enquiries regarding the interpretation and application of regional ecosystems and vegetation mapping. Amongst his recent publications is “Methodology for Survey and Mapping of Regional Ecosystems and Vegetation Communities in Queensland”.16 He was a co-author of the 1999 publication “The Conservation Status of Queensland’s Bioregional Ecosystem”17. [33] In preparing a report for the tribunal hearing, Mr Dillewaard carried out an assessment of the Regional Ecosystems found on the lot in question in November and December 2013. He said his assessment was based on the above-mentioned published methodology of which he was a co-author. It involved a desktop analysis of available natural resource information and the interpretation of remotely sensed imagery. Following the desktop assessment, Mr Dillewaard decided it was necessary to carry out a field inspection in order to collect site information on the floristics and structure of the vegetation site, to investigate landforms present and to assess similar REs in surrounding areas. He visited the site on 11 December 2013. 16 Nelder, V.J., Wilson, B.A., Thompson, E.J., & Dillewaard, H.A. (2012). Methodology for Survey and Mapping of Regional Ecosystems and Vegetation Communities in Queensland. Version 3.2. Updated August 2012. Queensland Department of Science, Information Technology, Innovation and the Arts, Brisbane. 17 Young, P.A.R. & Dillewaard, H.A. (1999). Southeast Queensland. In Sattler, P. & Williams, R.(eds) The Conservation Status of Queensland’s Bioregional Ecosystems. Department of Environment, Brisbane. -- 7 of 10 -- 8 [34] Mr Dillewaard agreed with Mr Gunn’s assessment that the land zone for the lot was identifiable as land zone 12 (Mesozoic to Proterozoic Igneous Rocks) and agreed that the north-eastern part of the lot previously identified as land zone 3 should be identified as land zone 12 for reasons he set out in detail in his report dated 24 December 2013. [35] Mr Dillewaard detailed in his report how he determined that the best fit for the RE for the lot in question was RE 8.12.27 more particularly the sub- unit RE 8.12.27b. His evidence was that he considered the regional ecosystems found on the lot in question to be the same in both the current version of REDD (version 8) used in his assessment report and in previous versions of REDD, including version 6.0b November 2009, used by Mr Gunn in his assessment and version 6.0b January 2011, which he says was current at the date Mrs Davis lodged the PMAV application in July 2011. [36] Mr Dillewaard said that regional ecosystems and their status are continually revised and refined as more quality information becomes available and is made publicly available through the regional ecosystem web page. [37] Mr Dillewaard said that the Herbarium’s mapping methodology is also periodically revised and made publicly available through the web page. He was a co-author of the mapping methodology publicly available at the time Mrs Davis lodged the PMAV application18. [38] In oral evidence and under cross examination from Mr Gunn, Mr Dillewaard disagreed with Mr Gunn’s assertion as to the correct approach to be taken in identification of an RE. Mr Dillewaard said the short description is essentially a label or title, there to give an indication of some of the key parts which need to be considered, summarised or differentiated from another short description. He said as indicated in the methodology, to apply the framework properly, one needs to consider all the information, including the REDD, site information and consult the bioregional coordinator if needs be. Tribunal’s Findings [39] As stated in the Joint Expert Report, Mr Dillewaard, Mr Gunn and Mr Paterson were in agreement with respect to a number of matters: (a) the references used to determine RE descriptions and land zones associated with RE descriptions; (b) that the lot in question is land zone 12; 18 Nelder, V.J., Wilson, B.A., Thompson, E.J. and Dillewaard, H.A. (2005) Methodology for Survey and Mapping of Regional Ecosystems and Vegetation Communities in Queensland. Version 3.1. Updated September 2005. Queensland Herbarium, Environmental Protection Agency, Brisbane. -- 8 of 10 -- 9 (c) that based on the current REDD version 8 the lot in question is RE 8.12.27b which means the whole of the block would be classed as an endangered regional ecosystem as defined under the Vegetation Management Regulations. [40] Mr Gunn and Mr Paterson agreed that REDD version 6.1 published in February 2013 is essentially the same as version 8. Therefore as at the date of the internal review, RE 8.12.27b is the best fit for the lot. Mr Gunn contends however that the correct approach is to apply the REDD which has been regulated at the date the RE is being assessed in relation to the lot in question. [41] As the Tribunal is conducting a fresh hearing on the merits, I find that in conducting an assessment of what is the applicable Regional Ecosystem that applies, the most up to date available information, including the current REDD, is to be considered. I also find that it was entirely appropriate for DNRN to gather updated information in the field and apply that to its consideration of what was the applicable RE. [42] If there is ambiguity as to whether it is appropriate to consider the most recent information available, I would consider relevant, the purposes of the VMA which is expressed to regulate the clearing of vegetation19 , including, in a way that conserves remnant vegetation in endangered regional ecosystems20 and prevents the loss of biodiversity21. The VMA further states that the purpose of the act is achieved mainly by providing for22, amongst other things, a framework for decision making that, in achieving the act’s purpose, 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 damage23. [43] I consider that where there is more current information available, such as more accurate RE descriptions, that updated information should be considered in giving effect to the purposes of the VMA. [44] I note that both experts for the applicant are in agreement that currently, applying REDD version 8, or even the previous version 6.0, the Lot in question, best fits the description for RE8.12.27b. [45] If I am wrong in finding that the version current as at the date of hearing is applicable, and instead that the earlier version should apply, then I accept the evidence of Mr Dillewaard as the pre-eminent expert in this field (supported by Ms Alty) in preference to the evidence of Mr Gunn (supported by Mr Paterson). That is, that the correct interpretation applying the methodology (which all experts agree is correctly referenced) 19 Vegetation Management Act 1999 (Qld) s 3. 20 Ibid s 3(1)(a)(i). 21 Ibid s 3(1)(d). 22 Ibid s 3(2). 23 Ibid s 3(2)(d). -- 9 of 10 -- 10 is that RE 8.12.27b is the best fit for the lot in question even applying REDD version 6.0b 2009. [46] Therefore, either way, my finding is that 1. The decision of the Respondent made 18 April 2013 pertaining to Lot SP252790 that the western and middle polygon is Endangered Regional Ecosystem 8.12.27b and the eastern polygon is Endangered Regional Ecosystem 8.3.2 is set aside. 2. The whole of Lot SP252790 is Endangered Regional Ecosystem 8.12.27b and the Respondent shall issue a replacement certified PMAV to reflect that finding. -- 10 of 10 --