Can't see the scrub for the trees

Environmental and Planning Law Journal

Volumn 21, Issue 1, 2004, Pages 44-61

  Bredhauer, Jacqueline ^a  

^a Hopgood Ganim Lawyers   (Australia)

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[No Author keywords available]

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EID: 84883520268     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (83)

1. Refer to the Vegetation (Application for Clearing) Act 2003 (Qld).
2. Parnell S, The Courier Mail (23 May 2003)
3. DNRM Advertorial, "State-Commonwealth Proposal for Managing Vegetation", Rural Weekly (25 July 2003) p 15
4. The Hon S Robertson, Minister for Natural Resources and Mines, "Letter to the Editor", Queensland Country Life (31 July 2003) p 10.
5. Remnant vegetation includes remnant endangered ecosystems, remnant of concern regional ecosystems and remnant not of concern regional ecosystems.
6. Reece Stickler, GIS Officer, DNRM, Toowoomba, interview 7 August 2003. This information is based on land cover data as well as remnant vegetation maps.
7. Agforce Member Alert, 10 June 2003.
8. Phelps M, "Howard Listens and Learns", Country Life (10 July 2003) p 4.
9. http://www.nrm.qld.gov.au/vegetation/applications.html viewed 11 July 2003.
10. "Urban area" means an area identified on a map in a planning scheme as an area for urban purposes, including rural residential purposes and future urban purposes, refer to Sch 8, Pt 4 of the Integrated Planning Act 1997 (Qld).
11. http://www.nrm.qld.gov.au/vegetation/rvmp.html#rvmpgroups viewed 11 July 2003.
12. Hon S Robertson MP, Minister for Natural Resources and Mines and Hogan T, Director-General, Ministerial Portfolio Statements, 2003-2004 State Budget at www.nrm.qld.gov.au/about/documents/budget.html viewed 25 July 2003.
13. Hon S Robertson, Minister for Natural Resources and Mines, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 25 February 2003, p 54.
14. Hon S Robertson, Minister for Natural Resources and Mines, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 13 March 2003, p 666.
15. DNRM, Land Cover Change in Queensland, A Statewide Land Cover and Trees Study Report (SLATS Report) (January 2003).
16. Interview 22 May 2003, Bruce Goulevitch, Senior Project Scientist, DNRM (SLATS).
17. DNRM, Land Cover Change in Queensland, A Statewide Land Cover and Trees Study Report (SLATS) (January 2003). For an explanation of the green house gas emissions project potential prior to the United States refusal to sign the Kyoto Protocol, see Bredhauer J, "Tree Clearing in Western Queensland-A Cost Benefit Analysis of Carbon Sequestration" (2000) 17 EPLJ 383.
18. For example, a wet season in 1999 may make the later drier image in 2001 difficult to estimate tree removal. See DNRM, Land Cover Change in Queensland, A Statewide Land Cover and Trees Study Report (SLATS) (January 2003).
19. Refer to p 13 of the SLATS report: Using a 95% level of confidence, the State estimates their level of error to be plus or minus 8%. This may be an underestimate as when intersecting SLATS maps with the digital database of lots cleared, the entire area of lots that had/have a permit granted over them automatically show up as legally clearing (even though this may not be the case).
20. Interview with Greg Sullivan, Investigations Coordinator, Vegetation Management Unit, DNRM (20 May 2003).
21. Greg Sullivan, Investigations Coordinator, Vegetation Management Unit, DNRM; Queensland Environmental Law Association Seminar, "Clearing Vegetation in Queensland-Mapping and Prosecution and Legal Aspects for Landholders and Developers" (11 August 2003 and 1 September 2003, Brisbane, Queensland).
22. Greg Sullivan, Investigations Coordinator, Vegetation Management Unit, DNRM, 21 May 2003.
23. Sections 240A-240E, Land Act 1994.
24. Section 238, Land Act 1994 (Qld). A show cause notice is given by the Minister to the landholder prior to any decision to forfeit a lease (ss 240B-240C, Land Act 1994).
25. Whilst the original decision is being considered (again) by the Minister, the lessee may apply to the Land Court to st ay the decision until the review and any later appeal to the court is finalised.
26. Section 812A, Water and Other Legislation Amendment Act 2003 (Qld) and s 94, Forestry Act 1959 (Qld) disallow the defence of mistake of fact. However, it is usually obvious to discern a water source and a commercial forest. It may not be easy to discern remnant versus non-remnant vegetation when clearing, especially with maps that are subject to error/variation.
27. In these instances the mistaken identity and age of a victim are irrelevant given the gravity of the offence.
28. These maps are actually prepared and amended by the Queensland Herbarium however for practical purposes of use and administration, the DNRM holds these maps for applicants and assessment purposes.
29. Hon S Robertson, Minister for Natural Resources and Mines, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 26 March 2003, p 812.
30. Bruce Goulevitch, Senior Project Scientist, DNRM, Interview 22 May 2003.
31. Thompson M "Bullied into Land Covenant", Country Life (8 May 2003) p 5-this article discusses the absurd position of a landholder being subjected to vegetation protection covenant for the renewal of his Grazing Homestead Perpetual Lease over land which had been cleared subject to a DNRM permit.
32. Telephone interview with the Queensland Herbarium, Brisbane, 8 April 2003.
33. Hon H Hobbs MP, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 26 March 2003, p 814.
34. Section 400A, Land Act 1994; s 30, Vegetation Management Act 1999.
35. Section 400A, Land Act 1994; s 35(3), Vegetation Management Act 1999.
36. Section 35(4) of the superseded Vegetation Management Act 1999 (Reprint No 1B), s 400F of the superseded Land Act 1994 (Reprint No 6A).
37. Section 400F, Land Act 1994; s 35, Vegetation Management Act 1999.
38. Section 400G, Land Act 1994; s 30, Vegetation Management Act 1999.
39. This map is actually prepared and amended by the Queensland Herbarium, however for the purposes of its practical administration the DNRM is responsible.
40. Section 431J, Land Act 1994; s 60A, Vegetation Management Act 1999.
41. According to Greg Sullivan, Investigations Coordinator, Vegetation Management Unit, DNRM, 22 May 2003, there have been prosecutions of contractors where Magistrates have emphasised that it is the contractor's responsibility to ensure that they comply with the law.
42. Hon S Robertson, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 13 March 2003, p 662.
43. If a development application involves the clearing of vegetation on freehold land, the assessment manager for the application may refuse the application if-(a) the applicant has been convicted of a vegetation clearing offence in the relevant period, regardless of whether the offence was committed before the relevant period; or (b) the owner of the land has been convicted of a vegetation clearing offence in the relevant period, regardless of whether the offence was committed before the relevant period.
44. Sections 274A-274C, Land Act 1994.
45. Shanahan MJ, Irwin MP, Smith, Carter's Criminal Code of Queensland (Butterworths 2002) at [80,075]
46. Sorby v Commonwealth (1983) 182 CLR at 281.
47. See ss 400V(4), 400Y(2), Land Act 1994 and ss 51(4), 54(2), Vegetation Management Act 1999. See also ss 465, 470, 473-479, Environmental Protection Act 1994 where the right against self-incrimination is available except where emergency circumstances apply.
48. Sections 400H and 400I, Land Act 1994 allow for the privilege against self-incrimination but ss 51 and 54, Vegetation Management Act 1999 and ss 400V(4) and 400Y(2), Land Act 1994 do not allow for this privilege. See also s 465 of the EPA where failing to assist an officer is also an offence.
49. Section 400G(3), Land Act 1994. For monitoring or enforcing compliance with a vegetation clearing provision, the authorised person may, subject to subsection (5)(g) require an occupier of a place, or a person at the place, to give the authorised person information to help the authorised person ascertain whether a tree clearing provision is being complied with.
50. Sections 51 and 54, Vegetation Management Act 1999 and ss 400G, 400H and 400I, Land Act 1994.
51. Sections 400T, 400U, 400Y and 400W, Land Act 1994 and ss 51 and 52, Vegetation Management Act 1999.
52. Section 400ZA, Land Act 1994 and s 55B, Vegetation Management Act 1999.
53. Greg Sullivan, Investigations Coordinator, Vegetation Management Unit, DNRM, 22 May 2003.
54. See the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld).
55. Section 5(2), Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) allows spent convictions to be considered where special circumstances of repeated offences are made out.
56. For example, when a person applies for a position as a member of the police force, licensee of a casino or a teacher of children.
57. Although there are some safeguards regarding the confidentiality of the criminal history and destruction of the criminal history report (s 400ZB, Land Act 1994 and s 55D, Vegetation Management Act 1999), the reality is somewhat different in small rural communities. Breaches of these safeguard provisions may have a devastating effect on individuals.
58. Which is unlikely given that most landholders would not know a DNRM investigations officer was arriving at their property. If any anger is shown it is likely to be some time after the event (as per the incident provided as an example by the Department).
59. Sections 403A and 403B, Land Act 1994 and ss 58 and 59, Vegetation Management Act 1999.
60. Section 431D, Land Act 1994 and ss 66A and 66B, Vegetation Management Act 1999.
61. Greg Sullivan, Investigations Coordinator, Vegetation Management Unit, DNRM, 22 May 2003.
62. Section 431F, Land Act 1994 and s 67A, Vegetation Management Act 1999.
63. Bruce Goulevitch, Senior Project Scientist, DNRM, Interview 22 May 2003. This can be a problem where there are road reserves where the actual road does not follow the gazetted path, or stock routes on properties with no fenced boundaries.
64. http://www.propertyrightsaustralia.org/torres_park_case_detail.htm and http://www.propertyrightsasutralia.org/Ray_White.ht m viewed 23 May 2003.
65. Section 431K, Land Act 1994 and s 60B, Vegetation Management Act 1999.
66. Hon L Long MP, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 13 March 2003, p 635.
67. Sentencing in Queensland Criminal Courts 1997-1998, at http://www.oesr.qld.gov.au/data/publications/crime_pub/sent_qld/sent_qld.html viewed 7 April 2003.
68. Tree clearing is a criminal offence under ss 2, 3(1), 3(2), 3(5) and 12(1), Queensland Criminal Code.
69. Hon S Robertson, Minister for Natural Resources and Mines, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 13 March 2003, p 932. Legislation provided as an example included: Mining and Quarrying Safety and Health Act 1999 (Qld); Electrical Safety Act 2002 (Qld); Dangerous Safety Administration Act; Environmental Protection Act 1994 (Qld); Integrated Planning Act 1997 (Qld); Radiation Safety Act 1999 (Qld); Coal Mining Safety and Health Act 1999 (Qld) and the Health Act 1937 (Qld).
70. The Uniform Civil Procedure Rule 1999 (Qld)-Pt 2 and Schs 1, 2 and 3 do not clearly allow for the recovery of costs for experts, satellite mapping etc. Conversations with Greg Sullivan, Investigating Coordinator, Vegetation Management Unit, DNRM, 20 May 2003 indicate that the DNRM have had mixed success in recovering these kin ds of costs prior to the introduction of this legislation.
71. Hon S Robertson, Minister for Natural Resources and Mines, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 27 March 2003, pp 943-944
72. Bredhauer J and Walton M, "Environmental Offender Beware!-The EPA has Picked Up its Big Stick" (Deacons Environment and Planning website) http://www.deacons.com.au/epqld/articles viewed 9 April 2002.
73. Hon E Cunningham MP and Hon P Lawlor MP, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 27 March 2003, pp 955-956.
74. Hon E Cunningham MP, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 13 March 2003, pp 631-632.
75. According to a Queensland Conservation Council Report.
76. Hon S Robertson, Minister for Natural Resources and Mines, Queensland Parliamentary Hansard, Natural Resources and Other Legislation Amendment Bill 2003, Second Reading, 26 March 2003, p 818.
77. According to a DNRM officer in the Dalby office, at the commencement of the tree clearing laws landholders were ringing often and seeking assistance when clearing on their land. The DNRM officers were offering to drive out to the properties to assist them in their clearing operations and provide advice, however they can no longer provide that service due to staffing restrictions. Now they simply tell the landholders t o "err on the side of caution".
78. There is one extension officer for tree clearing in Queensland and he is based in Toowoomba-far away from where the majority of tree clearing occurs in Queensland.
79. DNRM, Land Cover Change in Queensland, A Statewide Land Cover and Trees Study Report (SLATS) (January 2003) p 66. This may be contributed to the large shire area (4,069,000 ha), the high proportion of Mulga country within this area, and partially due to the 2001 drier season.
80. One officer stated that he believed that not enough landholders consulted their local DNRM office when tree clearing. There are, however, practical difficulties with this, for example, does a landholder stop operations and drive two to five hours one way to the nearest DNRM office to speak to an officer?
81. Hon H Hobbs, Matters of Public Interest, Land Clearing, Queensland Parliamentary Hansard, 26 November 2002, pp 4635-4736.
82. Taping of conversations for personal records is legal in Queensland, however subsequent publication
83. Thompson M, "Property Rights No 1 Issue", Country Life (8 May 2003) p 5.