Glasgow v Hall

SUPREME COURT OF QUEENSLAND

CITATION: Glasgow v Hall [2007] QCA 19

PARTIES: KEITH RONALD GLASGOW (appellant/applicant) v PETER THOMAS HALL (respondent/respondent)

FILE NO/S: CA No 273 of 2006 / DC No 25 of 2005

DIVISION: Court of Appeal

PROCEEDING: Application for Extension of Time s 118 DCA (Criminal)

ORIGINATING COURT: District Court at Rockhampton

DELIVERED EX TEMPORE ON: 2 February 2007

DELIVERED AT: Brisbane

HEARING DATE: 2 February 2007

JUDGES: McMurdo P, Jerrard JA and Holmes JA / Separate reasons for judgement of each member of the Court, each concurring as to the orders made.

ORDER: Application for extension of time within which to apply for leave to appeal refused with costs

CATCHWORDS: ENVIRONMENT AND PLANNING – SOIL CONSERVATION AND TREE PRESERVATION – LAND CLEARING – where applicant cleared land contrary to s 4.3.1(1) of the Integrated Planning Act 1997 (Qld) – where convicted of the offence and fined $10,000 and costs – whether warrant to enter land was valid under s 68(6) of the Vegetation Management Act 1999 (Qld) / REAL PROPERTY – GENERAL PRINCIPLES – INCIDENTS OF ESTATES AND INTERESTS IN LAND – ESTATES IN FEE SIMPLE – GENERAL ATTRIBUTES OF – where applicant carried out assessable development on freehold land without a permit – where applicant contends that an estate in fee simple is excluded from legislative power – whether the State has power to legislate with respect to use or management of freehold land – whether the definition of freehold land in the Land Act 1994 (Qld) includes estates in fee simple / Integrated Planning Act 1997 (Qld), s 4.3.1(1), s 4.3.18(3) / Land Act 1994 (Qld) / Property Law Act 1974 (Qld) / Vegetation Management Act 1999 (Qld), s 68(6) / Bone v Mothershaw [2002] QCA 120 ; [2003] 2 Qd R 600, followed / Burns v State of Queensland & Anor [2006] QCA 235 ; CA No 526 of 2006, 23 June 2006, followed / Wilson v Raddatz [2006] QCA 392 ; CA No 276 of 2006, 10 October 2006, considered

COUNSEL: No appearance for the applicant, the applicant’s submissions were heard on the papers / D J Grealy for the respondent

SOLICITORS: No appearance for the applicant / Commonwealth Director of Public Prosecutions for the respondent

HOLMES JA: The applicant was charged by complaint with one count of assessable development on freehold land without a permit contrary to section 4.3.1(1) of the Integrated Planning Act 1997 (Qld). He was convicted of that offence on the 16th February 2005, and was fined $10,000 and ordered to pay costs. An appeal against that conviction under section 222 of the Justice Act 1886 (Qld) was dismissed on the 2nd March 2006. On the 25th September 2006, well outside the statutory time limit, the applicant filed an application for an extension of time within which to file a notice of application for leave to appeal, together with a proposed application for leave.

Submissions have been filed on the applicant's behalf. They were prepared by Mr David Walter, who is not, it appears, a lawyer. Those submissions exceed the prescribed length of 10 pages by a factor of 10. There has been no appearance on the application itself. The Court now proceeds on the basis of the parties' submissions.

The Integrated Planning Act, by a combination of definitions, defines assessable development as including "carrying out operational work that is the clearing of native vegetation on freehold land"; with certain exceptions. The applicant mounted associated arguments: the first, that because he and his wife held an estate in fee simple in their land the Crown had no power to legislate in respect of its use or management ;the second, that the "freehold land" referred to in the Integrated Planning Act did not extend to land held in private ownership.

The first notion, that the grant of an estate in fee simple somehow precludes the exercise of legislative power in respect of the land, was comprehensively rejected by this Court in Bone v Mothershaw [2002] QCA 120 and Burns v State of Queensland & Anor [2006] QCA 235. There are two points to be made further: special leave was refused in Bone v Mothershaw because of the lack of prospect of success. In Burns v State of Queensland, Mr Walter assisted the applicant in mounting her argument; as he did again in a similar case in which an extension of time was rejected, Wilson v Raddatz [2006] QCA 392. The absence of merit of the argument must surely be becoming apparent even to Mr Walter.

The second argument appears to be based on the contention that because the relevant Acts give this definition of freehold land: "freehold land includes land in a freehold lease as defined under the Land Act 1994" without any express reference to estates in fee simple, they cannot apply to the latter.

That definition, of course, is not exhaustive, and as the learned District Court Judge pointed out, both by statutory definition in the Property Law Act 1974 (Qld), and by common law usage, an estate in fee simple is freehold. As he went on to explain, the Vegetation Management Act 1999 (Qld) and the Integrated Planning Act establish a scheme designed to apply to the clearing of vegetation on all land, with specified exceptions, none of which has any application here.

The applicant seemed also to place some reliance on section 68.6 of the Vegetation Management Act to argue that a warrant to enter his land, in the execution of which evidence was obtained, was invalid because the information relied on in order to obtain it was based on remotely sourced images.

Section 68 has nothing to do with use of evidence from such images; it is concerned merely with the commencement of the limitation period for the bringing of summary proceedings. This argument was entirely misconceived, as was another to the effect that the charge was not brought by an authorised complainant because section 4.3.18 subsection 3 of the Integrated Planning Act required proceedings to be brought by "the assessing authority". That provision concerns only offences which have something to do with the Standard Building Regulation and is irrelevant here.

The argument for an extension of time referred to the strain under which the applicant and his wife have been placed, both financially and emotionally, but did not explain the delay. More importantly, none of the grounds of the application had any substance. Since the application for leave to appeal has no prospect of success, I would refuse the application for an extension of time within which to apply for leave to appeal.

THE PRESIDENT: I agree. I would only add by way of placing the final nail in the coffin for the arguments of the applicant consistently put by Mr Walters that an application for special leave to appeal to the High Court of Australia in Bone v Mothershaw was refused on the 20th June 2003 because there were insufficient prospects of success.

JERRARD JA: I agree that the application for an extension of time should be refused for the reasons given by Justice Holmes.

THE PRESIDENT: The orders are as proposed by Justice Holmes.