As several people, whom I sincerely thank, have commented (favourably) on
my message to the Mareeba Shire Council about saving 'habitat' trees, I
would like to give credit to Dr Aila Keto, President of the Australian
Rainforest Conservation Society.
Dr Keto had previously drawn my attention to the serious situation in the
loss of 'habitat' trees generally in Queensland, and she (and the Society)
sposored my attendance at a recent Seminar on the Integrated Planning Act
which came into force as recently as March this year. Had I not attended
that seminar I would not have known of the provisions of that Act - which
runs to over 300 pages, so it's not easy to digest.
In emailing the Council I decided it would be unnecessarily provocative
(and therefore probably counter-productive) to remind them of the
provisions in the Act relating to the Planning and Environment Court, but
I'll mention them here in case they are of interest to any Queensland
subscribers to birding-aus. (Others may care to delete the message at this
point!)
One of the speakers at the Seminar was Professor Fisher (Law Professor,
Griffiths University). The printed version of his talk contains this
advice:
" ... the statement of purpose in the Act coupled with the duty to perform
a function in a way that advances that purpose creates a very strong and
forceful mandate. There is a clear responsibility placed upon a local
government and the Minister to achieve ecological sustainability. While it
may not be directly enforceable as a matter of law, any decision which can
be shown to be inconsistent with ecological sustainability would clearly be
at risk of challenge for invalidity."
In answer to a question, Professor Fisher indicated that Australian Courts
tend to be conservative in their approach to environmental matters,
adopting a legalistic approach rather than a merits approach. If asked to
rule on the validity of a local government action they would ascertain
whether the Council had complied with all the procedures required by the
Act, and if it had, would then be likely to accept the Council's judgement
where something is a matter of opinion.
Attendance at a seminar and a cursory reading of the Act does not make one
an expert, and the seminar was restricted to planning matters: court
actions were not part of the agendum. So all I do here is point out that
the following provisions concerning the Planning and Environment Court
appear in section 4.1.21. of the Integrated Planning Act:
"4.1.21.(1) Any person may bring proceedings in the court for a
declaration about -
(a) a matter done, to be done, or that should have been done under this
Act; and
(b) the construction of this Act and planning instruments under this Act; and
(c) the lawfulness of land use or development; and
(d) an infrastructure charge; and
(e) a failure by an assessment manager to give an acknowledgment notice.
Subsection (5) of section 4.1.21., empowers the court to hear and decide a
proceeding for such a declaration.
I must emphasise that this needs expert legal confirmation, but to me that
indicates that, at least when the Act is fully operational, and possiblly
right now, "any person" could seek to have the Court declare that removing
those trees would be contrary to furthering the purpose of the Act
("seeking to achieve ecological sustainability") and therefore invalid.
(Small comfort of course, if the trees are already down.)
Two more points need to be made:
1. "Any person" means just that. You don't have to be directly affected
personally. And furthe, the Act defines "person" in a way that includes an
organisation or representatives thereof. So "any person" means any
individual or any organisation. A nature conservation organisation could
bring proceedings.
2. The Act provides that in such actions each party must bear their own
costs (unless the action has been frivolously or improperly brought). I
can imagine that a major Council could bankrupt a conservation organisation
by putting a prolonged action at QC level, but at least we don't have the
situation that applied when the Wildlife Preservation Society of Queensland
tried to protect the bats in the Mt Etna caves, failed on a technicality,
and the court ruled that the Society had to pay the mining company's court
costs.
The usual advice applies of course: keep out of the Courts if at all
possible. Try to persuade ... as Lloyd Nielsen (who found lyrebird nests
for me 30 years ago) was doing by having this action raised with
birding-aus. (Hello LLoyd, and thanks ... in case you've now got your
connection to birding-aus.)
Cheers
Syd
H Syd Curtis
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