Noosa Shire Council enforcement notices for unlawful vegetation clearing held to be defective

In April 2019, Noosa Shire Council issued multiple enforcement notices to the joint owners of a large rural parcel alleging unlawful vegetation clearing being a development offence under the Planning Act 2016 (Qld) (PA).

All of the recipients appealed against the enforcement notices to the Planning and Environment Court which in Serratore & Anor v Noosa Shire Council [2021] QPEC 21 determined that the notices should be set aside for various defects, despite the Council establishing that some of the vegetation clearing was in fact unlawful.

Background

Giuseppe and Teresa Serratore, and their five adult children, jointly owned a rural property in Noosa Shire which had an area of approximately 41ha. Giuseppe and Teresa lived on the property with one of their sons, Frank.

The property was improved by a dwelling, outbuildings and fences and partly planted with fruit trees, produce and pine trees. The property also contained extensive areas of native vegetation.

After May 2018, an extensive area of vegetation was cleared on the land to create a series of bush fire tracks and firebreaks/fire lines.

Enforcement notices

Upon becoming aware of the clearing and undertaking investigations, Council issued enforcements to each of the registered owners of the property. The enforcement notices were on identical terms and each alleged that the named recipient had committed or is committing a development offence under section 163 of the PA being carrying out assessable development without an effective development permit.

The appellants appealed to the Planning and Environment Court alleging that the enforcement notices were invalid on a number of grounds and should be set aside by the Court.

Enforcement notices given to Teresa, Michela, Priscilla and Frank Serratore

Section 168(1) of the PA provides that the Council may give an enforcement notice to:

• the person reasonably believed to have committed, or to be committing, the offence; or
• the owner of the premises where the offence is believed to have been, or being committed.

The enforcement notices were all issued by Council on the basis that each recipient had, or was, committing the alleged development offence, and not on the basis that the recipients were an owner of the property.

The Court held that the evidence did not establish that Teresa, Michela, Priscilla and Frank Serratore committed the vegetation clearing being the development offence alleged in the enforcement notice. The enforcement notices issued to each of these recipients was accordingly set aside by the Court.

Enforcement notice defects

The remaining appellants submitted that the enforcement notices were defective and should be set aside on the following grounds:

• the enforcement notices do not sufficiently describe the nature of the alleged offence; or
• the enforcement notices provide insufficient details of the act/s required to comply with the notices.

His Honour Judge Williamson QC DCJ concurred with the reasoning of her Honour Judge Kefford in Benfer v Sunshine Coast Regional Council [2019] QPELR 613 as to the level of particularity required for the description of the nature of the alleged offence.

In this case, Judge Williamson held that the enforcement notices did not identify with the required precision the nature of the alleged offences. Further, not all of the essential factual ingredients necessary to establish the alleged offence was identified.

During the appeal Council conceded that some of the clearing works carried out was accepted development and therefore lawful. The nature of the alleged offences could therefore not be sustained.

On this basis, the remaining enforcement notices were set aside on the ground they did not satisfy section 168(3)(a) of the PA.

The Court further agreed with the appellant’s submissions that the enforcement notices did not sufficiently describe the details of the actions to be carried out as required by section 168(3)(c)(i) of the PA and this provided further grounds for setting aside the enforcement notices.

Was the clearing assessable development?

The Court further considered whether the clearing carried out was assessable development. The Court undertook a detailed assessment of the clearing and whether this was assessable development having regard to its nature and relevant exemptions.

On the evidence, the Court was satisfied that part of the clearing works was assessable development and had been carried out without a valid permit or exemption. However, because of the defects noted above, the appeal was allowed and all of the enforcement notices were set aside.

Conclusion

The decision in Serratore provides important guidance for enforcement authorities as to the level of detail required to be included in enforcement notices under the PA.

In particular, the decision affirms that care and attention need to be given to drafting enforcement notices to ensure that these comply with the relevant statutory requirements.

The failure to do so will result in enforcement notices being set aside on appeal, even where a council establishes that a development offence has been committed.

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Authored by:

Stafford Hopewell, Special Counsel