Glasgow v. Hall [2006] QDC 42 (2 March 2006)

District Court of Queensland|2006-03-02|Before: De Jersey CJ

[1] In the late 1980s Mr and Mrs Glasgow purchased a property "Valentine Plains" situated near Calliope in Central Queensland. Mr and Mrs Glasgow worked the property.

[2] More recently, part of the property was cleared to provide feed for stock; and, in the long term to replace the native vegetation with grasses.

[3] Mr Glasgow did not have a permit or other authority to clear the land.

[4] The land clearing was investigated, and in due course proceedings were commenced against Mr Glasgow in the Magistrates Court for breach of the Integrated Planning Act 1997. Technically the charge laid was one under the Integrated Planning Act (section 4.3.1) of starting an assessable development without a development permit.[1]

[5] Mr Glasgow was found guilty by an Acting Magistrate on 16 February 2005. He was fined $10,000 and ordered to pay costs amounting to $15,759.25. The proceeding before me is an appeal from the decision of the Acting Magistrate.

[6] At the appeal a Mr D. Walter was allowed (without objection) to represent Mr Glasgow. Mr Walter is not legally qualified but has obviously made his own study of the issues raised on the appeal.

[7] The issues argued on appeal are purely questions of law. Two points are raised. The first is that the State of Queensland lacks the legal power to prevent Mr Glasgow clearing his land. This immunity from legislative control is said to stem from the fact the Glasgows hold an estate in fee simple in the land.

[8] The second point is that the legislative scheme for the regulation of land clearing applies only to freehold land. Mr Walter's argument is that the term "freehold" or "freehold land" used in the Integrated Planning Act does not include land held in fee simple, or if it does, then it should be understood as a reference to freehold land owned by the State as distinct from privately owned freehold land.

Can the State regulate land clearing on land held in fee simple? (the first point)

[9] Both authority and conventional legal analysis are against Mr Walter's argument. A judgment in the Court of Appeal[2], a single judgment of De Jersey CJ[3], and judgments by a number of District Court judges are against the argument.[4] I will endeavour to explain in my own words where I think Mr Walter has fallen into error.

[10] His argument assumes that the law-making power of the State in respect of land is derived from sections 30 and 40 of the Constitution Act 1867 (Qld). Those sections expressly confer on the Queensland legislature authority to regulate the sale, letting, disposal and occupation of the waste lands of the Crown.[5] Mr Walter fixes on this conferral of the power to sell, let, dispose and occupy unallocated Crown lands in these early constitutional instruments as an exhaustive statement of the law-making power of the State with respect to land.

[11] Thus he argues that when Mr and Mrs Glasgow were granted an estate in fee simple in the land in or around 1989 (pursuant to the Land Act 1962-1988) the State thereupon lost the power to regulate land clearing on the land. In order to present a logically consistent argument, it was submitted Mr and Mrs Glasgow's land (and all land held privately in fee simple) is removed from the law-making power of the State.

[12] The problem with the analysis is that the law-making power of the State over alienated Crown lands is derived not from sections 30 and 40 of the Constitution Act 1867 (or any earlier instrument to similar effect) but from the general law-making power in the Constitution Act 1867. Under our constitutional arrangements the State legislature enjoys the power to make laws for the "peace, welfare and good government" of the State. Australia today is a sovereign nation with supreme law-making power residing in the Commonwealth and State legislatures. There can be no doubt the grant of power to the State to make laws for the "peace, welfare and good government" of the State includes the power to regulate land clearing in the State. The power to regulate the use of the land does not deny Mr Glasgow's title to the land he purchased. As White DCJ commented in an earlier case, although the ownership of the land is alienated, the land itself is not alienated from the sovereign State of Queensland. Just as the State has power to prohibit the use of Mr and Mrs Glasglow's land to grow illegal drug crops so it has the power to regulate land clearing. Both powers derive from the authority of the State legislature to enact laws for the "peace, welfare and good government" of the State.

The statutory interpretation point (the second point)

[13] The unauthorised assessable development charged is that of clearing remnant vegetation on freehold land. Mr Walter, picking up on the term "freehold land" as it is used in the offence, put two additional arguments. One is that land held in fee simple is not freehold land. The other is that, even if land held in fee simple is freehold land, the statutory scheme applies to State held freehold land, not to privately held freehold land.

[14] An estate in fee simple is, however, a freehold estate. The Property Law Act 1974 provides:

"Part 3 - Freehold Estates

After the commencement of this Act the following estates of freehold shall be capable of being created and, subject to this Act, of subsisting in land -

(a) estate in fee simple;

(b) estate for life or lives."

This meaning coincides with the common dictionary meaning and with recognised texts on property law.[6]

[15] The suggestion that the legislation is aimed only at State held freehold land is impossible to sustain. A careful examination of the Vegetation Management Act 1999 and the Integrated Planning Act 1997 shows that the scheme applies "to all clearing of vegetation" throughout the State with four exclusions not relevant for present purposes.[7] The words are not limited in the way suggested. In order to limit the scope of the provisions in the way suggested, it would be necessary to insert additional limiting words into s7 (1) of the Vegetation Management Act 1999. Moreover, the scheme establishes a comprehensive code for the assessment of applications to clear land. The scheme also provides a framework for the investigation and prosecution of land clearing breaches. The general structure of the legislation does not support the limitation proposed by Mr Walter.

[16] Mr Glasgow was found to be in breach of the land clearing laws in force in Queensland, and ordered to pay a very substantial financial penalty. The experience has obviously been a distressing one for him. There can be no doubt, however, that the Queensland parliament can regulate land clearing in Queensland. The power to legislate for the "peace, welfare and good government" of the State confers the "widest legislative powers appropriate to a sovereign.[8] In my view, the grounds of appeal argued have not been substantiated. The conclusion I have reached is exactly the same conclusion reached by the Court of Appeal, by the Chief Justice of the Supreme Court, and by three judges of the District Court. In these circumstances the appeal must be dismissed.

[1] The assessable development being clearing "remnant vegetation" as defined in the Vegetation Management Act 1999.

[2] Bone v Mothershaw [2002] QCA 120

[3] Burns v State of Queensland [2004] QSC 434

[4] Brabazon DCJ (Wilson v Raddatz [2005] QDC, Maryborough, 24 August 2005), White DCJ (Burns v State of Queensland (2004) P and E Court, Cairns, 2 August 20004), Bradley DCJ (Dore v State of Queensland (2004) QDC, Cairns, 5 August 2004)

[5] These sections (and their precursors) asserted the colonial legislature's control over land. The purpose of the section was to confer on the State legislature alone the power to grant waste lands, and so transfer the power of doing so from the uncontrolled discretion of the Sovereign to the Governor in Counsel acting under the direction of the legislature: Bone v Mothershaw [2002] QCA 120 at para 18 per McPherson JA

[6] Mr D. J. Grealy in his written submissions cited extracts from the Oxford Concise Dictionary and, "The Law of Real Property" (3rd edition) by Megarry and Wade

[7] S7(1) Vegetation Management Act 1999. Forest reserves and protected areas under the Nature Conservation Act 1992, State forests and timber reserves under the Forestry Act 1959, and forest entitlement areas under the Land Act 1992 are excluded (s7(1) Vegetation Management Act 1999).

[8] Ibralebbe v R (1964) AC 900, 923, cited by McPherson JA in Bone v Mothershaw [2002] QCA 120 at para 6

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