Glasgow v Hall [2006] QDC 042

The applicant was found guilty of an offence of starting an assessable development without a development permit, constituted by clearing remnant vegetation on freehold land. He was fined $10,000 and ordered to pay costs amounting to $15,759.25.  The proceeding in Glasgow v Hall [2006] QDC 042 was an appeal from this decision. At the appeal David Walter was allowed to represent Mr Glasgow, and contended 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, and 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, insisting that the law making power of the State with respect to land was derived from, and limited to, sections 30 and 40 of the Constitution Act 1867 (Qld). Referring to Bone v Mothershaw [2002] QCA 120 and Burns v State of Queensland & Anor [2006] QCA 235, the court held that the power to legislate for the “peace, welfare and good government” of the State confers the “widest legislative powers appropriate to a sovereign”.

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 were filed on the applicant’s behalf, also prepared by David Walter. Those submissions exceeded the prescribed length of 10 pages by a factor of 10.  There had been no appearance on the application itself, so the court in Glasgow v Hall [2007] QCA 19 proceeded on the basis of the parties’ submissions, and noted:

“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.”