Environmental Law Australia

Pelican Links cases

This here's the vanilla single for the book thingie.

The Pelican Links Cases involved a dispute over pre-emptive clearing of a melaleuca wetland near Caloundra in South-East Queensland and a subsequent criminal prosecution and planning appeal for the development.

The cases involved three separate but related lines of litigation spanning four years from 2004 to 2008:

  • civil injunctive relief to halt the pre-emptive clearing;
  • a planning appeal after the council refused a development application for a large masterplanned community for residential housing and a hotel on the site; and
  • a criminal prosecution to fine the developer for the pre-emptive clearing.

The clearing was pre-emptive in that it was intended to “assist” the developer’s application for the large masterplanned community by removing vegetation that council wanted to protect and that would, therefore, be an obstacle for the approval if it remained.

The facts of the pre-emptive clearing are set out in the first judgment for civil injunctive relief:

On 21 July [2004], Mr Dineen an environment compliance officer with Council received a notification from a member of the public of suspected unlawful tree clearing occurring to the west of Pelican Waters Golf Club. He went to the Golf Club at around 10:30am. When he arrived, he was approached by a Naskam security officer. He told that person who he was and that he was investigating a complaint of tree clearing. The security officer refused him permission to enter the site and he had to leave. …

Mr Dineen returned to the Club at about 11:00am with (2) officers from Council’s regulatory services unit. Again, a Naskam security officer denied them permission to enter. …

Mr Dineen then ordered a helicopter charter and he and other Council officers overflew the site at about 2:15pm. He took photographs of what he saw. He saw (2) bulldozers working clearing trees, and several work-men on the ground and (3) other vehicles. He saw trees marked with pink tape and a large tract of trees on the ground. He returned to the Golf Club at 7:30pm and observed that Naskan Security officers were still on duty.

Late on 21 July 2004 Council urgently applied for and obtained from this Court an interim injunction to prevent further clearing, and clearing stopped. …

Some of the photographs taken by council officers from the helicopter are shown on the right of this page. The photographs show the trees cleared and bulldozers on site in the foreground.

The Planning & Environment Court halted the clearing with an interim injunction and later declared that the clearing was unlawful because it contravened a condition of a 1996 approval for the land.

The developers then appealed against this decision to the Queensland Court of Appeal. The appeal was dismissed.

After the Planning & Environment Court halt the pre-emptive clearing the developers applied for planning approval from the council. Council refused the application.

The developers then appealed the council’s refusal of their development application to the Planning and Environment Court. The court dismissed their appeal and upheld council’s decision to refuse the development application.

While the pre-emptive clearing was stopped by the Planning and Environment Court, there was no power in those proceedings to impose a fine for the development offence that had been committed.

In order to obtain a significant fine against the developers to deter others from similar conduct, council commenced criminal proceedings in the Magistrates Court. The magistrate stayed (i.e. stopped) the case proceeding due to technical concerns about the prosecution case.

Council subsequently appealed against the Magistrates Court’s decision to the District Court of Queensland. The appeal was allowed and the matter re-mitted to the Magistrates Court for further hearing.

After winning the appeal to the District Court the council did not proceed with a re-trial of the criminal proceedings. The criminal proceedings were, therefore, never brought to a resolution.

These cases provide an important lesson in the quick reaction and outstanding initiative taken by officers of Caloundra City Council in acting to prevent a calculated breach of planning laws for commercial gain.

In areas under high-development pressure, such as the Sunshine Coast, it is important that councils are willing to take such strong action to deter development offences. Developers otherwise have an incentive to contravene the law to obtain substantial commercial profits.

These issues are discussed in the following lecture on development offences where the Pelican Links Cases are used as a case study (commencing at 1:00:20 on the counter):

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Key documents

Civil injunctive relief

Planning appeal

Criminal Prosecution

  • Decision of the District Court in 2008 allowing an appeal by the council against a Magistrates Court decision staying criminal proceedings for the pre-emptive clearing: Lucy v OCC Holdings P/L & Ors [2008] QDC 4 (Robin QC DCJ).
  • Decision of the District Court granting costs to the council for the appeal: Lucy v OCC Holdings P/L & Ors (No 2) [2008] QDC 169 (Robin QC DCJ).

Thanks to the Sunshine Coast Regional Council for supplying copies of the master plan for the proposed deveopment.