Redland City Council’s efforts to prosecute Quandamooka man Darren Burns for clearing native vegetation on North Stradbroke Island were dealt a blow this week when Queensland’s highest court dismissed the Council’s appeal against a District Court finding that Mr Burns was not guilty.
Magistrates Court conviction
In 2020 Mr Burns engaged a contractor to clear native vegetation on land at East Coast Road, Point Lookout. The area cleared (about 2,400 square metres) was part of lands recognized as Native Title land under the 2011 Quandamooka Native Title Determination.
Redland City Council initiated legal action against Mr Burns in the Brisbane Magistrates Court where Mr Burns was found guilty of illegally clearing land. Magistrate Ross Mack found that the tree clearing by Mr Burns was prohibited development which contravened section 162 of the Planning Act. Mr Burns was fined $20,000 plus costs and ordered to revegetate the land.
An account of this case was published by Redland City Council on 5 February 2024: Court ruling confirms native vegetation clearing was illegal
Darren Burns appeals to the District Court
Mr Burns lodged an appeal in the District Court and on 28 February 2025 Judge Porter found that
- The clearing by Mr Burns was not lawful by reason of the [Native Title] Determination or because it was for a traditional Quandamooka cultural activity; but
- Mr Burns raised a defence under section 22(2) of the Criminal Code that his land clearing was done in the exercise of an “honest claim of right” and this claim was not disproved by Redland City Council to the required legal standard.
Judge Porter allowed the appeal and ordered that the Magistrates Court conviction be set aside and be replaced with a verdict of not guilty.
Queensland District Court Decision: Burns v Redland City Council [2025] QDC 15 (28 February 2025).
Redland City Council appeals to Queensland’s highest court
Redland City Council then appealed to the Queensland Court of Appeal which is a division of the State’s Supreme Court.
In a 2/1 judgement handed down this week, the Court of Appeal dismissed the Council’s appeal and awarded costs against the Council.
The appeal was heard by three Supreme Court judges: Chief Justice Bowskill, Justice Bond, and Justice Doyle.
Justice Doyle found that none of the Council’s grounds of appeal had been made out. Justice Bond concurred with Justice Doyle.
Chief Justice Bowskill’s dissenting view was that the matter should have been sent back to the Magistrates Court for a retrial.
Queensland Court of Appeal Decision: Redland City Council v Burns[2025] QCA 222
What next?
After losing appeals in both the District Court and the Queensland Court of Appeal, Redland City Council has only one possible avenue available if it wishes to pursue the matter further.
This would be for the Council to seek leave to appeal to the High Court of Australia. There is no automatic right to appeal to the High Court which accepts only a small percentage (approximately 12%) of all special leave applications.
A few years ago Redland City Council appealed to the High Court in the class action case about the Council’s collection of canal levies. In this case, the High Court gave the Council special leave to appeal but decided 3/2 to dismiss the Council’s appeal and awarded costs against the Council.
We wrote about the canal levies case in High Court dismisses Redland City Council appeal against class action.