How do you challenge a notice that you’ve illegally cleared vegetation?

It is important that landowners are aware of their rights in circumstances where they receive what is known as an “information notice” from the Department of Natural Resources Mines and Energy (Department) alleging illegal vegetation clearing on the landowner’s property.

There may be legitimate reasons why an information notice is factually incorrect including inaccurate or outdated maps maintained by the Department or ambiguity in a clearing permit.

Applying to the Department for an internal review of their decision

If a landowner disagrees with the facts alleged in the information notice, an application must be made within 20 business days of receipt of the information notice.

However, if the information notice is not or cannot be given to the landowner, an application must be made within 20 business days of the landowner otherwise becoming aware of the decision.

Importantly, an application for an internal review does not stay the original decision.

The Department’s review process

Within 30 days of reviewing a landowner’s application, the Department must review the original decision and either:

• confirm it; or
• amend it;
• or substitute another decision for it.

If the review decision is not the decision sought by the landowner, there is a further right of review for the landowner and that is in the relatively low cost environment of Queensland Civil and Administrative Tribunal (QCAT). I say “low cost” because a party to a QCAT proceeding can’t be legally represented unless permitted by the Tribunal and it will only be allowed if it is in the interests of justice to do so.

While some landowners might consider the Department’s internal review process to be akin to “Caesar judging Caesar”, there is a degree of comfort in having a further right of appeal to QCAT where the final decision will be made by an independent Tribunal member.

We have a client in north-west Queensland who is currently going through the appeal process to QCAT and we await with interest his views on the experience he has in this Tribunal.

Author: Peter Kenny (Partner) [retired]