Landowner’s appeal over vegetation mapping dismissed; expert evidence stands (QCAT, 2026)

What happened

The dispute concerned four parcels of land north and east of Rathdowney in South East Queensland. Under the Vegetation Management Act 1999 (Qld), vegetation on land is sorted into "vegetation category areas" labelled A, B, C, R and X. Category B covers "remnant vegetation" and category C covers "high value regrowth vegetation". Category X is the leftover category: land in category X can be cleared by the owner without approval.

The landowner had applied in July 2019 for a Property Map of Assessable Vegetation, known as a PMAV, which is the map that fixes the categories for a property. The Department of Natural Resources, Mines and Energy made a decision on the categories and then an internal review decision. The landowner took that internal review decision to QCAT for a merits review.

At the first hearing, QCAT set the internal review decision aside. Relying on the evidence of an expert in vegetation survey and mapping engaged in the proceeding, the tribunal held that some relatively small parts of land that had been mapped as category B should instead be category C or category X. The rest stayed as category B or X. The landowner had argued that the whole of both the northern and eastern parcels should be category X because of past clearing. The first tribunal rejected that, holding that remnant vegetation is not defined by reference to past clearing, but by whether the vegetation falls within the classes set out in the Act's definition and forms the predominant canopy.

The landowner appealed. He represented himself. The Department was represented by counsel instructed by its in-house legal team.

What each side wanted

The landowner asked the Appeal Tribunal to accept fresh evidence: a written statement from a botanist and ecologist criticising the expert's report and whether it followed the accepted mapping methodology, plus a further statement of his own that he had not filed at the first hearing. His appeal grounds were that the tribunal wrongly relied on the expert's evidence because the expert assessed the vegetation as it stood in 2022 rather than in July 2019 when the PMAV application was made, that it gave too little weight to the landowner's own evidence, that its findings were unreasonable, and that it was wrong to leave any of the land as category B when, he said, all of it should have been category X. The Department argued there is nothing in the Act that fixes the assessment at the date of the PMAV application, and that the tribunal was entitled to accept the expert evidence before it.

What the tribunal decided

The Appeal Tribunal made three orders: the application to adduce fresh evidence is refused; to the extent that leave to appeal is required, leave is refused; and the appeal is otherwise dismissed.

No money was claimed or ordered. The effect is that the categorisation set by the tribunal at first instance stands, with the small areas moved to category C or X and the balance remaining category B or X.

Why the tribunal decided it that way

On the fresh evidence, the Appeal Tribunal applied the test used in earlier QCAT appeal decisions under section 147(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld): could the evidence have been obtained with reasonable diligence for the first hearing, would it probably have an important effect on the result, and is it credible. It was not clear why the botanist's evidence had not been available earlier, and had he been available the experts could have conferred before the first hearing. By the time of the appeal he could not be contacted and was not available to be cross-examined, so his evidence could not be tested. The landowner also accepted that his own extra statement would probably make no difference if the Appeal Tribunal took the same view as the first tribunal on the weight of expert evidence. The Appeal Tribunal noted that parties are expected to put their full evidence before the tribunal at the first hearing, otherwise the first hearing becomes a mere warm-up for an appeal.

On the timing argument, the Appeal Tribunal held there is nothing in the Vegetation Management Act pointing to the state of the vegetation at the date of the PMAV application. Section 20AM says a category B area is an area that contains remnant vegetation, and section 20CA, headed "Process before making PMAV", is directed at the current state of the vegetation. The argument also misunderstood what a merits review is. Under section 20(2) of the QCAT Act the tribunal conducts a fresh hearing on the merits, standing in the shoes of the original decision maker and deciding on the material before it and the law as it stands at the time of the hearing. It is not reviewing the reasons the department gave, which is the role of judicial review. In any event, the first tribunal had recorded that the expert compared 2018 and 2019 imagery with his July 2022 site visits and found no difference in remnant status between the two dates.

On weight, the Appeal Tribunal said an appeal tribunal will not readily disturb findings of fact unless they are shown to be wrong by incontrovertible facts or uncontested testimony, or are glaringly improbable or contrary to compelling inferences. The first tribunal had considered the landowner's evidence, found he was not an expert in vegetation survey and mapping, and found he had misunderstood what counts as remnant vegetation under the Act. It described the expert as an impressive witness. That was a conclusion open to it.

On unreasonableness, the test is the Wednesbury standard: whether no reasonable tribunal could have reached the finding. Because the first tribunal accepted the expert evidence and there was no contrary expert evidence before it, the finding was one it was entitled to make. An appeal on a question of law is available as of right under section 142 of the QCAT Act, but leave is needed for an appeal on a question of fact or mixed law and fact; leave was refused and the appeal dismissed.

What this means if you are in a similar position

If you are in a similar position, challenging how a government department has classified or assessed your land or your application, this decision shows how a merits review in a tribunal works. The tribunal does not simply check whether the department's reasons were sound at the time. It makes the decision again for itself, on the evidence in front of it and the law as it stands on the day of the hearing, which means later evidence and a later state of affairs can come into it.

It also shows how much weight expert evidence can carry where there is nothing expert on the other side. The landowner knew his own land well, but the tribunal preferred the opinion of a witness with qualifications in vegetation survey and mapping, and the Appeal Tribunal would not reopen that choice. The decision also shows that an appeal is generally not a second chance to run the evidence you did not run the first time: fresh evidence on appeal is allowed only in limited circumstances, and evidence from a person who cannot be cross-examined is hard to test and so hard to rely on.

In a dispute with a department or agency about a decision that affects you, the step most people take first is a written request or complaint to the body itself, setting out the decision, why they say it is wrong and what they want changed, including any internal review the legislation provides. If that does not resolve it, the next step is usually an application to the tribunal or review body that has power over that kind of decision.

How to apply: our step-by-step guide to a QCAT application. More decisions: QCAT cases and other civil disputes.

Source: Drynan v Department of Natural Resources, Mines and Energy [2026] QCATA 141 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.