Evidence, Property, Injunctive Relief, Land Use, Permits, Forests, Standing, Criminal, Civil, Administrative

This was the first of three cases concerning the unauthorised and pre-emptive clearing of native vegetation to make way for a development, which ultimately was never approved.

At first instance, the Caloundra City Council sought an injunction to prevent the respondent from further felling of trees on the property, after approximately 4.8 hectares were cleared on 21 July 2004.

A previous zoning approval contained a general condition, which required written council approval, prior to clearing of native vegetation.

In May 2004, a surveyor engaged by the respondent began enquiries with the Council regarding which areas could be cleared. The communications from the Counsel advised of the areas which could be cleared and stressed the fact that no application for approval had been received. The respondent confirmed that no land would be cleared without approval.

On 21 July 320014, the Council received a complaint form a member of the public regarding unlawful tree felling on the property. The council were denied entry to the site by hired security guards. Later that day the Council chartered a helicopter and took photographs of two bulldozers, uprooted trees and others with pink markings and a number of workers.

Late on 21 July 2004, the Council urgently applied for and obtained an interim injunction to prevent further clearing.

The court held that the respondents acted unlawfully in breach of the condition of the 1996 rezoning condition and that the respondents were aware of the condition prior to the clearing.

Several legal arguments of the respondent were dismissed, regarding whether the rezoning condition was unlawful and/or Council had no power to impose a condition in those terms on the development approval.

The court also granted declarations that the land clearing was unlawful and that it amounted to a development offence within the provisions of s. 4.3.3. of the Integrated Planning Act 1997.

The respondents’ application for leave to appeal was dismissed and they were ordered to pay the Council’s costs of the application for leave to be assessed.

(Contribution:  Case provided by Chloe Foyster from QUT)