Khyber case

This case study is provided to explain and illustrate the concepts involved in Queensland’s vegetation management system in practice.

The case involved an appeal to the Land Court of Queensland by a landholder against refusal of a tree clearing permit under the Land Act 1994 (Qld) for a pastoral property known as “Khyber”. Applications for broadscale clearing such as involved in this appeal are no longer possible due to the phase-out of broadscale land clearing in Queensland in 2006 (which was modified in 2013 to allow broadscale clearing for high value agriculture and irrigated high-value agriculture).

Virtually all appeals involving development applications for vegetation clearing are now made to the Planning and Environment Court and are subject to the Vegetation Management Act 1999 (Qld) (VMA) and the Planning Act 2016 (Qld). Some challenges to decisions under the VMA, for instance against decisions involving a property map of assessable vegetation (PMAV), are heard by the Queensland Civil and Administrative Tribunal (QCAT).

While the avenue for appeal considered in this case no longer exists, the concepts dealt with in the case study remain relevant as they form the conceptual basis for vegetation management in Queensland at a State level.

The case study illustrates the use of regional ecosystem (RE) mapping for vegetation management. Neldner (2005) provides a detailed explanation of regional ecosystem mapping, including concepts such as landzones and map polygons referred to in the decision of the Land Court in this case.

It also illustrates the crucial role that expert evidence performs in many court cases. In this case each party called an expert on vegetation mapping but the Court ultimately preferred the evidence of the expert expert from the Queensland Herbarium, Dr Don Butler, engaged by the Minister. The site visit Dr Butler performed in preparing his evidence was instrumental in his opinion being accepted over the opinion of the expert called by the landowner, Dr Beale. The value of the site visit and the detailed, careful notes taken during it by Dr Butler are evident in the reasons for the decision, for instance at [51]-[59] where the Court stated:

“[51] Dr Butler had traversed Polygon 5 on his inspection. Dr Beale had not and conceded that as he had ground truthed the area, Dr Butler was in a better position to assess the correct regional ecosystem. …

[53] Dr Beale made it clear that he had little confidence in the accuracy of the regional ecosystem mapping. He considered that it needed more ground truthing. He assessed the five polygons with the assistance of satellite imagery, aerial photographs and a GIS program in conjunction with his inspections. He did not use a stereoscope. …

[55] Dr Butler clearly had made comprehensive records of his inspection of the area, which he applied to his interpretation of the aerial photography, satellite mapping and other material, including WARLUS. Where he and Dr Beale differed, Dr Butler gave detailed and convincing reasons for his mapping.

[56] On the other hand, although he took some notes of his 2005 inspection, Dr Beale did not write a report or produce a species list. He said that he was tying the GPS points to the aerial photographs. What notes he took, he provided to Mr Kenny of Devine Agribusiness. However, no disclosure of those documents was made.

[57] On his second inspection by motorcycle, Dr Beale said he found it difficult to take detailed notes of species, but he considered that he had sufficient to tell what type of country he was going through and why he did not agree with Dr Butler’s mapping. In cross-examination he said, “I am reasonably sure I told you what I saw.”

[58] One major area of dispute was Dr Butler’s statement that the endangered regional ecosystems on “Khyber” occur on a plateau of red earth. Dr Beale’s contention was that this was more likely to indicate sandy mulga dominant species than clay plains supporting brigalow and belah. However, I find Dr Butler’s evidence more convincing, that the vegetation is consistent with texture contrast soils, with a sandy or loamy surface horizon (which gives the area the red colour), overlaying a clay subsoil.

[59] It seems to me that the essential difference between Dr Butler and Dr Beale is whether the area mapped as endangered regional ecosystems in Polygons 1, 2 and 3, should be classified as landzone 4 (clay) or landzone 5 (sand) and the type of vegetation that grows on those landforms. After considering the whole of the evidence, I have come to the conclusion that the evidence of Dr Butler is to be preferred.”

This case is used to explain the vegetation management framework in Queensland in the following lecture: