Land and Environment Court New South Wales

• Medium Neutral Citation: Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84
• Hearing dates: 10-12 June 2014
• Decision date: 25 June 2014
• Jurisdiction: Class 1
• Before: Preston CJ

Decision

(1) Adjourn the hearing of the appeals to 9.30am on 11 July 2014.

(2) Direct the parties to file agreed remedial work directions, including attached maps and forms, or failing agreement, to file their competing versions of the remedial work directions, by 9 July 2014.

• Catchwords: APPEAL - clearing of native vegetation - directions for remedial work - power to direct remedial work on land other than land cleared - cleared land subject to three years of ploughing, herbicide application and cropping - successful remediation of cleared land uncertain and unlikely - remediation of offset areas likely to provide measurable conservation gain for native vegetation communities affected by clearing - location, nature and extent of offset areas - specifications for remedial work
• Legislation Cited: Native Vegetation Act 2003 ss 12, 38, 39, Div 4 Pt 3
• Cases Cited: Commercial & Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000; Plath v Rawson [2009] NSWLEC 178; Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198
• Category: Principal judgment
• Parties: 10355 of 2013; Grant Wesley Turnbull (Applicant); Director-General, Office of Environment and Heritage (Respondent); 10356 of 2013; Cory Ian Turnbull and Donna Maree Turnbull (Applicants); Director-General, Office of Environment and Heritage (Respondent)
• Representation: Mr T A Alexis SC with Ms H P Irish (Applicants); Mr D K Jordan (Barrister) (Respondent); Cole & Butler (Applicants); Legal Services Branch, Office of Environment and Heritage (Respondent)
• File Number(s): 10355 of 2013 and 10356 of 2013
• Publication restriction: No

Judgment

Nature of appeals and outcome

1 The owners of two rural properties at Croppa Creek, some 60 km north-east of Moree, have appealed against decisions of the Director-General of the Office of Environment and Heritage ('OEH') to give the owners directions under s 38 of the Native Vegetation Act 2003 to carry out work to repair damage caused by, and rehabilitate land affected by, clearing of native vegetation on their properties. The owners contend that the Court, in disposing of the appeals, should substitute for the Director-General's directions, other directions requiring remedial work on different parts of the properties and on different terms.

2 I have determined that the appeals should be upheld and that different directions should be given to those given by the Director-General. The directions I propose to give will require remedial work to be undertaken on different parts of the properties and according to different specifications to those required by the Director-General. I set out the terms of the directions later in the judgment. I have marked on a map attached to the judgment the parts of the properties on which remedial work will need to be carried out in accordance with the directions. These areas will need to be mapped accurately and I will make directions for this to occur. I will thereafter make the formal orders disposing of the appeals.

3 In hearing the appeals, I have been assisted by Acting Commissioner Adam, under s 37 of the Land and Environment Court Act 1979.

The properties

4 Grant Turnbull owns the property named "Colorado" on County Boundary Road, Croppa Creek, which is formally described as Lots 1 and 17 in DP 755998. Lot 17 lies to the north of Lot 1. "Colorado" is 1527 ha in size.

5 Cory and Donna Turnbull own the adjacent property immediately to the south of "Colorado", named "Strathdoon", which is also on County Boundary Road, Croppa Creek. It is formally described as Lot 2 in DP 621439. "Strathdoon" is about 906 ha in size.

6 The properties are situated within an area of the Moree Plains heavily used for grazing and cropping, with native vegetation being of limited extent.

Native vegetation is cleared on the properties

7 Prior to 1 February 2012, the two properties were operated as a single enterprise for mixed grazing and cropping. In late 2011, the properties were sold, "Locheil" (now "Colorado") to Grant Turnbull and "Strathdoon" to Cory and Donna Turnbull. Following exchange of contracts but prior to settlement, and apparently with the consent of the departing owner, areas of native vegetation on both properties were cleared.

8 Between about 1 November 2011 and 18 January 2012, Ian Turnbull, who is the father of Grant Turnbull and the grandfather of Cory Turnbull, and another man engaged by Ian Turnbull, cleared native vegetation on both "Colorado" and "Strathdoon". Clearing was carried out by means of bulldozers. The trees were pushed over and formed into piles.

9 For "Colorado", the parts of the property that were cleared of native vegetation were located, in the case of Lot 17, in the north-east, along the eastern boundary, in the south and for almost all of the length of the southern boundary, and in the case of Lot 1, in a rectangular shaped area in the centre. The aggregate of the areas within which native vegetation was cleared was about 421 ha. This is the aggregate of the areas contained within the perimeters of each of the parts of the property within which native vegetation was cleared. Within this aggregate area, about 2,708 trees were cleared. The total area previously occupied by the canopies of those trees was 29.9 ha. The tree density within the aggregate area cleared on "Colorado" was sparse to very sparse, with only 14 ha being estimated to be mid dense.

10 For "Strathdoon", the parts of the property that were cleared of native vegetation were located in the north-east, extending from the main house to the eastern boundary and to the north but not as far as the northern boundary with "Colorado". The area within the perimeter of the cleared parts of the property was about 73 ha. About 694 trees were cleared in this area. The total area previously occupied by the canopies of those trees was 8.8 ha. The tree density within the area cleared on "Strathdoon" was also predominately sparse to very sparse, with only between 15 to 17.4 ha estimated to have been mid dense.

11 Amongst the native vegetation cleared on "Colorado" and "Strathdoon" were four tree species, being Belah (Casuarina cristata), Poplar Box (Eucalyptus populnea ssp bimbil), Western Rosewood (Alectryon oleifolius), and Brigalow (Acacia harpophylla), and native groundcover species.

12 The native vegetation within the areas cleared on "Colorado" and "Strathdoon" comprised three identified vegetation communities and areas of unidentified vegetation. For "Colorado", of the 421 ha within which native vegetation clearing occurred, about 196 ha was of Brigalow-Belah open forest/woodland vegetation community (described under the NSW Vegetation Classification and Assessment system as VCA ID 35), 99.5 ha was of Poplar Box-Belah woodland vegetation community (VCA ID 56), 47 ha was of Belah woodland vegetation community (VCA ID 55) and 78.5 ha was unidentified vegetation. For "Strathdoon", of the 73 ha within which native vegetation was cleared, about 33 ha was of Brigalow-Belah open forest/woodland vegetation community (VCA ID 35), 25 ha was Belah woodland vegetation community (VCA ID 55) and 15 ha was Poplar Box-Belah woodland vegetation community (VCA ID 56).

13 In the autumn of 2012, after the native vegetation on "Colorado" and "Strathdoon" had been cleared, Grant Turnbull and Cory Turnbull set alight the piles of pushed over trees on their respective properties and raked out the ash heaps. They ploughed the cleared land, applied herbicides to kill any emerging vegetation, and sowed commercial crops (wheat and/or barley). The crops were harvested in late spring of 2012. The process of ploughing, herbicide spraying, and sowing and harvesting of commercial crops was repeated in 2013 and 2014. The cleared areas on both "Colorado" and "Strathdoon" are currently under crop.

The clearing was unlawful

14 Section 12 of the Native Vegetation Act provides:

(1) Native vegetation must not be cleared except in accordance with:

(a) a development consent granted in accordance with this Act, or

(b) a property vegetation plan.

(2) A person who carries out or authorises the carrying out of clearing in contravention of this section is guilty of an offence and is liable to the maximum penalty provided for under section 126 of the EPA Act for a contravention of that Act.

(3) It is a defence in any proceedings for an offence against this section if it is established that the clearing was permitted under Division 2 or 3 or was excluded from this Act by Division 4.

15 The clearing that was undertaken on "Colorado" and "Strathdoon" was not authorised by a development consent or a property vegetation plan, was not permitted under Div 2 or 3 of Pt 3, and was not excluded by Div 4 of Pt 3 of the Native Vegetation Act. The clearing was, therefore, in contravention of s 12 of the Native Vegetation Act.

16 In separate proceedings, OEH has prosecuted Mr Ian Turnbull for the offences constituted by the clearing of native vegetation on "Colorado" and "Strathdoon" that occurred between 1 November 2011 and 18 January 2012. Mr Ian Turnbull has pleaded guilty to the offences. A sentence hearing has been held and judgment was, at the time of the hearing of these appeals, reserved.

The Director-General gives directions for remedial work

17 Section 38 of the Native Vegetation Act provides, in part:

(1) If the Director-General is satisfied:

(a) that any native vegetation has been cleared in contravention of this Act, or

(b) that the clearing of native vegetation on any land has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment,

the Director-General may, by notice in writing, direct the landholder, or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time.

(2) Any one or more of the following types of work may be directed to be carried out by a notice under this section:

(a) work to repair any damage caused by the clearing,

(b) work to rehabilitate any land affected by the clearing (including the taking of steps to allow the land to regenerate),

(c) work to ensure that specified land, or any specified river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing.

18 On 16 April 2013, Mr Celebrezze, as the authorised delegate of the Director-General, gave a direction under s 38 of the Native Vegetation Act to Grant Turnbull, as the landholder of "Colorado", and Cory and Donna Turnbull as the landholders of "Strathdoon". Mr Celebreeze was satisfied that the native vegetation that had been cleared on "Colorado" and "Strathdoon" between 1 November 2011 and 18 January 2012 was cleared in contravention of the Native Vegetation Act.

19 The directions for remedial work were expressed in similar terms, although the lands to be remediated were, of course, different. In each case, however, the areas on which remedial work was to be undertaken (the remediation areas) were the areas within which native vegetation had been cleared in the period between 1 November 2011 and 18 January 2012, being the 421 ha area on "Colorado" and the 73 ha area on "Strathdoon". The remediation areas were shown on the map attached to each direction.

20 The directions were stated to be given:

In order to:

a) repair damage caused by the clearing;

b) rehabilitate land affected by the clearing (including the taking of steps to allow the land to regenerate).

21 The directions specified the period for performance of the remedial work as being 15 years from the date of the direction, although there were a number of interim deadlines for various actions required under the directions.

22 The remedial work required included:

(1) exclusion of stock from the remediation areas: construction of a fence around the boundary of the remediation areas, to detailed specifications, and removal and continued exclusion of stock from the remediation areas;

(2) weed, exotic species, commercial crop and non-native plant management: ongoing destruction of any exotic species (defined in the dictionary of the direction), commercial crops and non-native species within the remediation areas;

(3) assisted revegetation: taking steps to allow the remediation areas to regenerate, including ground preparation, seed stimulation and monitoring;

(4) direct planting: if assisted regeneration fails, undertaking direct planting, to detailed specifications, including ground ripping, species selection and sourcing, planting density, monitoring and management;

(5) records: keeping of records of work done, inspections and monitoring results; and

(6) reporting: reporting to OEH by means of an initial works report and subsequent monitoring reports.

The landholders appeal against the directions

23 Section 39 of the Native Vegetation Act provides that a person aggrieved by a decision of the Director-General to give a direction for remedial work under s 38 may appeal against the decision to the Land and Environment Court. Grant Turnbull and Cory and Donna Turnbull exercised their rights to so appeal against the Director-General's decisions of 16 April 2013 to give directions for remedial work.

24 Although the contentions of Grant Turnbull and Cory and Donna Turnbull in their appeals were originally more extensive, by the time of the hearing of the appeals, the contentions had been refined. The applicants no longer disputed that directions for some form of remedial work on each property should be given. The dispute concerned the parts of the properties that should be remediated and the specifications for the remedial work. The applicants contended that the directions for remedial work should apply to different parts of their respective properties, rather than the remediation areas directed by the Director-General, and be smaller in size. They also contended for different terms to those in the Director-General's directions. The differences in terms concerned the specifications for fencing and stock management, the management of exotic species, the methods of assisted regeneration and direct planting, and the requirement for a property vegetation plan. The applicants' proposed alternative directions for remedial work embodied their contentions.

25 The resolution of these appeals depends, therefore, on firstly determining the parts of the properties to which the directions for remedial work should apply and then settling the terms of the directions.

26 The evidence of the experts called by the parties dealt largely with issues that were common to both appeals, although referring to specific locations and actions, where appropriate, on individual properties. It will be convenient to adopt this approach in addressing the matters in dispute and resolving the appeals. When the matters are disposed of, however, it will be necessary to make separate orders giving directions for remedial work for each property.

The competing directions for remedial work

27 The essential matters in dispute between the parties are:

(a) whether there is power under s 38 of the Native Vegetation Act to make directions for remedial work on land other than land subject to clearing;

(b) if there were to be power, as a matter of fact, what are the appropriate locations of remedial work;

(c) the nature of the areas required to be remediated (such as the vegetation communities);

(d) the areal extent of the remedial work required; and

(e) the specifications for remedial work required, such as for fencing, stock, weed and fire management.

The power to direct remedial work on land other than cleared land

28 The alternative directions proposed by the applicants involved undertaking remedial work on parts of the properties other than the areas cleared between 1 November 2011 and 18 January 2012. The Director-General, on the other hand, required the whole of the areas cleared to be remediated, namely, 421 ha on "Colorado" and 73 ha on "Strathdoon". The Director-General submitted that the carrying out of remedial work in the areas proposed by the applicants was not permissible under the terms of s 38 of the Native Vegetation Act. The Director-General argued that the use of the words "the clearing" in s 38(1) and (2) limited the land on which remedial work may be directed to be carried out to only the areas unlawfully cleared. As a consequence, it was not within power to direct remedial work on other locations on the properties where no unlawful clearing occurred.

29 The Director-General's argument is rejected on two bases - the text, context and purpose of s 38 of the Native Vegetation Act and the decision in Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198.

30 On the first basis, although the words "the clearing" in s 38 must refer to the land that has been cleared in contravention of the Native Vegetation Act, there are a number of indicators in s 38 that directions for remedial work can apply to land other than the land that has been cleared.

31 First, s 38(1) and (2) do not, in express language, limit the power to direct remedial work to only the land that has been cleared. The Director-General's power to give a direction under s 38(1) is expressed in terms of directing "specified work in a specified manner and within a specified time", but not specifying the land on which the remedial work is to be carried out as being the land on which the clearing occurred. Similarly, the specification of the type of work that may be directed to be carried out in s 38(2)(a), namely, repairing any damage caused by the clearing, does not expressly state that the land on which the repair work is to be carried out is the land that has been cleared. Section 38(2)(b) and (c) refer to land on which certain types of work may be directed to be carried out but do not specify that that land is restricted to the land that has been cleared. Section 38(2)(b) uses the wide words "any land" while s 38(2)(c) uses the words "specified land". There is no warrant to construe these words narrowly to mean only the land that has been cleared.

32 Secondly, the language of s 38(1) and (2) expressly indicates that a direction can be given to carry out remedial work on land other than the land that has been cleared. Section 38(1)(b) sets as one condition for the giving of a direction for remedial work that clearing of native vegetation on any land has caused, or is likely to cause, on or "in the vicinity of the land" any soil erosion, land degradation or siltation of any river or lake or any adverse effect on the environment. Clearly, this is referring to land other than the land that has been cleared. Given that this is one of the conditions on which the Director-General may give a direction for remedial work, it would be incongruous if the direction could not require remedial work on that other land that has been adversely affected by the clearing.

33 Section 38(2)(c) in fact expressly permits the giving of a direction to undertake work to ensure that land, including any river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing. Remedial work to achieve these goals might be required at both the site of the clearing, for example to cut off sediment supply at source, or off-site, for example to prevent damage caused by already deposited sediment increasing.

34 Section 38(2)(b) also refers to work to rehabilitate "any land affected" by the clearing. Obviously, the land on which native vegetation was cleared is affected by the clearing, but so too land in the vicinity of the land cleared can be affected by the clearing. The examples given in s 38(1)(b) and s 38(2)(c) of land affected by soil erosion, land degradation or siltation, clearly are lands affected by the clearing. Other examples may be where there are edge effects on native vegetation adjoining the land cleared (such as weed invasion) or loss of connectivity between native vegetation on the land cleared and on land in the vicinity of the land cleared, adversely affecting fauna or flora on land in the vicinity of the land cleared.

35 Section 38(2)(a) refers to work to repair any damage "caused" by the clearing. The concept of causation is wide enough to embrace not only damage to the land cleared, but also damage occurring on other land in the vicinity of the land cleared. That is to say, clearing may cause both direct damage to the land cleared as well as indirect damage to land in the vicinity of the land cleared.

36 Accordingly, the text and context of s 38 do not support the Director-General's argument that the power under s 38 is limited to directing remedial work only on the land that has been cleared. The purpose of s 38 also does not support this argument. The purpose of s 38 is evidently remediation of damage caused by clearing of native vegetation (see also s 3(e) of the Native Vegetation Act). A narrow construction of s 38 that restricts remediation to only the land that has been cleared and leaves other land that has been damaged or affected by the clearing unremediated would be contrary to the purpose of the section.

37 The second basis for rejecting the Director-General's argument is the decision in Terranora dismissing a similar argument. Terranora was a case arising from the illegal clearing of 1,279 plants of seven threatened species from a rainforest site in northern NSW. As in the present case, a prosecution of the person who cleared the plants occurred (Plath v Rawson [2009] NSWLEC 178), but subsequently a direction for remedial work was served on the landholder. The direction, which had been settled in consultation with the landholder, required the landholder to clear non-native vegetation on, remove stock from and fence a remediation area, most of which had not been affected by the unlawful clearing.

38 After the direction had been issued, the landholder did not exercise its right of appeal under s 39 of the Native Vegetation Act against the direction. However, sometime later, the landholder sought judicial review in Class 4 of the Court's jurisdiction, contending that the direction was ultra vires because, under s 38, there is no power to give a direction to repair or rehabilitate land that was not damaged or affected by unlawful clearing or to offset the unlawful clearing by directing the clearing of non-native vegetation on any other location on the land that was not damaged or affected by the unlawful clearing (at [37]).

39 Biscoe J analysed the construction of the particular direction for remedial work (at [39]-[42]) and the construction and application of s 38 of the Native Vegetation Act (at [43]-[66]). His Honour considered that the phrase "any damage caused by the clearing" in s 38(2)(a) had very wide scope:

The s 38(1)(b) criterion for the enlivenment of the power is that the Director-General is satisfied that "the clearing of native vegetation on any land has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment". This is part of the context of s 38(2). It is a useful pointer to the conclusion that "any damage" in s 38(2)(a) means any damage of the type contemplated by s 38(1)(b), which plainly extends far beyond physical damage to individual trees that might have been cut down. Textually, s 38(2)(a) authorises a direction to carry out work to repair "any damage" caused by the clearing": the quoted words could hardly be wider. The purpose of s 38 is remediation. In my opinion, having regard to context, text and purpose, "any damage" in s 38(2)(a) is not limited to physical impacts on a particular threatened plant viewed in isolation from the population of the threatened species of which it is part, and includes any damage to the populations of threatened species on the Land. For example, in the present case 75 per cent of the macadamia nut threatened species population on the Land was destroyed by the unlawful clearing. Clearly, in my opinion, this population was damaged. So were the populations of the other unlawfully cleared species on the Land. (at [45])

40 Biscoe J therefore rejected the landholder's argument that there is no power under s 38 of the Native Vegetation Act to give a direction to carry out remedial work on land other than the land cleared, and rejected the landholder's challenge to the validity of the direction in that case.

41 The Director-General submitted that the decision of Biscoe J in Terranora turned on its own facts and was distinguishable. I do not agree. The decision involved construction of the power under s 38 and was a question of law not fact. In the interest of judicial comity, I should only depart from the decision if I was of the view that it was clearly wrong. I am not of that view. The construction of s 38 accords with that I have given above.

42 Accordingly, the Director-General's submission should be rejected. Remedial work can be directed to be carried out at locations on the properties other than those directly impacted by clearing.

The appropriate locations of the remedial work

43 Even though the power in s 38 permits directing remedial work to be carried out on land other than the land cleared, whether or not it is appropriate to direct remedial work to be carried out on other land will depend on the facts and circumstances of the individual case, and there can be no single rule applicable to all. Even if it were to be decided that remediation on other land is desirable, there may still be constraints on the location of the other land. For example, it may be inappropriate for a site to be situated a long distance away from the land cleared; there needs to be some reasonable proximity between the offset area and the cleared land. In the present case, the remedial work locations proffered by the applicants are within the same properties on which the clearing occurred.

44 The Director-General's position could perhaps be expressed as a policy preference, rather than a legal requirement, that remedial work be carried out in the locations of the clearing. The Director-General submitted that if the applicants were permitted to undertake remedial work away from the cleared areas, it would be seen by the community and other landholders in the region that the applicants had "got away with it" and that this would set a bad example for others who might wish, for economic or other reasons, to unlawfully clear elsewhere.

45 This view, however, has to be tempered by practical considerations, such as whether seeking compliance with the Director-General's direction requiring remedial work to be carried out only on the cleared areas would be futile and result in a failure to meet the objects of the Native Vegetation Act (in s 3) and the purpose of s 38.

46 Remediation in many instances would be best achieved by permitting and promoting natural regeneration (as envisaged in the phrase in parentheses in s 38(2)(b)) on the land from which native vegetation was cleared. In this case, however, I consider that natural regeneration within the 421 ha cleared on "Colorado" and the 73 ha cleared on "Strathdoon" that the Director-General requires to be remediated is very uncertain and unlikely to be successful.

47 The canopy seed store, which may have been present in the trees felled, will have been destroyed when the debris was burnt. The soil seed bank will have been substantially reduced, if not altogether destroyed, by three seasons of ploughing, application of herbicide, planting of crops and their harvesting. Indeed, Mr Cory Turnbull was candid in his oral evidence that the purpose of the herbicide treatments was to eliminate regeneration and regrowth. Recolonisation of the area by propagules naturally transported from off-site is likely to be very slow and uncertain.

48 Dr Nadolny, in his oral evidence, expressed some optimism that on cracking clays, such as occur on the properties, there could still be some viable seed in the soil. I consider this unlikely given three seasons of ploughing, herbicide application and cropping. But in any event, it seems unlikely that there would be sufficient viable seed of all of the affected species of native vegetation so as to regenerate the composition of the plant communities and their spatial distribution in the areas cleared.

49 If the remedial work specified in the Director-General's directions had been carried out in the cleared areas in early 2012 there would have been a much higher likelihood of a successful outcome. If regeneration had occurred it would have provided "like for like" replacement, both in terms of the composition of the plant communities and the pattern of their spatial distribution across the cleared areas. Section 38 of the Native Vegetation Act does not explicitly address whether the object of remedial work is to "repair" or "rehabilitate" on a "like for like" basis, although the wording in s 38(2)(b) to allow the land to regenerate may support achieving that object. If the remedial works, by practical necessity, must be located at sites other than those cleared (as in the current circumstances), the only achievable goal may be to approximate "like for like" replacement.

50 If natural regeneration is very unlikely the remediation would need to be by replanting and/or reseeding using propagation material brought into the remediation areas. There could be problems sourcing sufficient appropriate material (particularly for Brigalow which seeds irregularly, up to 15 years between seeding events), but even if that problem could be overcome it would be very expensive. There may be grounds for disputing elements of the applicants' costings but there can be no doubt that the total sums involved would be very large. In addition to the large outlays, there would be loss of income due to the loss of production area.

51 Although the cost of remediation should not be a prime factor in considering what remedial work directions should be made, it is nevertheless a matter to be taken into account. Little environmental benefit will be gained and the objects of the Native Vegetation Act will not be met if the remedial work required results in bankruptcy of the persons required to perform the remedial work and it is left unfinished.

52 In these circumstances, I consider that the location of the remedial work directed to be undertaken should not be only and wholly in the cleared areas specified as remediation areas in the Director-General's directions for remedial work. I now turn to consider whether other locations on the properties and/or any parts of the cleared areas specified by the Director-General should be selected for the remedial work.

53 Three experts gave evidence on remediation of the areas cleared on "Colorado" and "Strathdoon", Mr Peter Hall and Mr Geoffrey Sinclair for the applicants and Dr Chris Nadolny for the Director-General. The experts conferred and produced a joint expert report. The map attached to that report identified areas on the properties outside of the areas cleared that could act as offsets for the loss of native vegetation cleared (offset areas) and the cleared areas that could be remediated (remediation areas). I attach the map to the judgment (Attachment A). The offset areas were divided into high priority offsets and potential other offsets. The remediation areas were divided into high priority remediation areas and potential or disputed remediation areas.

54 The offset areas were areas where direct actions could be undertaken that would provide measurable conservation gain for the species, populations of species, and ecological communities of the native vegetation affected by the clearing in the cleared areas. The high priority offsets were areas of more disturbed native vegetation where the experts predicted that remedial work would be likely to provide greater conservation gain while the potential other offsets were areas of less disturbed native vegetation where the experts predicted remedial work would be likely to provide lesser conservation gain.

55 The high priority remediation areas were locations in the cleared areas that adjoined areas of native vegetation or that could be linked to areas of native vegetation. They were areas where the experts predicted remedial work could provide a greater conservation gain. The potential or disputed remediation areas were the remaining cleared areas where the experts considered it was more uncertain that remedial work could provide conservation gain because of the highly damaged condition of the areas and their location.

56 The experts agreed that the offset areas could be used as a component of the remediation plan provided that key parts of the cleared areas were remediated (para 2(b)). They also agreed that, to be acceptable, these offset areas should link with the cleared areas to maximise the potential to repair damage to habitat caused by the clearing and preferably they should comprise vegetation of the same type as that which was cleared (para 2(c)).

57 The high priority offset areas on "Colorado" comprised, within Lot 17, a large area shaped like saddlebags on a horse, extending west to east from the south-western corner of Lot 17 near the boundary with Lot 1, across to nearly the eastern boundary of Lot 17, as well as two smaller areas, one patch just north of the boundary with Lot 1 and another patch in the north-east of Lot 17 in the middle of a large cleared area. In Lot 1, the high priority offset area was located in the south-eastern corner to the south of the main house on "Colorado". The total area of the high priority offset areas on "Colorado" was 255 ha.

58 The experts estimated that the vegetation communities in the high priority offset areas on "Colorado" were divided evenly (a third each) between three vegetation communities of Brigalow-Belah open forest/woodland (VCA ID 35), Belah woodland (VCA ID 55) and Poplar Box-Belah woodland (VCA ID 56) (about 85 ha each).

59 The main high priority offset area on "Strathdoon" was located in the north-east of the property abutting the boundary with Lot 1 on "Colorado", so as to form a contiguous offset area. It extended to the west and south, stopping just short of the main house on "Strathdoon". It excluded an existing quarry and dam. There was also a smaller, high priority offset area either side of the access road to the main house. The total area of the high priority offset areas on "Strathdoon" was 44.5 ha.

60 The experts estimated that the vegetation communities in the high priority offset areas on "Strathdoon" were divided equally between a Silver-leaf Ironbark/Poplar Box vegetation community (22 ha), and a mixture of Brigalow-Belah open forest/woodland and Belah woodland vegetation communities (about 22 ha each).

61 The potential other offset areas on "Colorado" were located, within Lot 17, to the north and west of the western saddlebag of the main high priority offset area and in a narrow strip running along the eastern boundary. In Lot 1, the potential other offset areas were located in the north-western corner abutting the boundary with Lot 1 and forming a contiguous area with the potential other offset area on Lot 17, in a narrow strip comprising a forested firebreak (dominated by Brigalow) extending west to east from the potential other offset area in the north-eastern corner, running parallel to the boundary with Lot 17, and in a narrow strip running along the western boundary of Lot 1. The total area of potential other offset areas on "Colorado" was 156 ha.

62 The main potential other offset area on "Strathdoon" was located as an extension of the high priority offset area, running in a south-westerly direction to meet the western boundary, as well as in narrow strips running along the western and eastern boundaries. The total area of potential other offset areas on "Strathdoon" was 109.2 ha.

63 The high priority remediation areas on "Colorado" comprised, within Lot 17, a narrow corridor linking the isolated patch in the south of Lot 17 with vegetation on the boundary with Lot 1, a wider corridor linking the patch in the cleared area in the north-east with vegetation on the eastern boundary of Lot 17, and a corridor adjacent to and parallel to the potential other offset area running along the eastern boundary of Lot 17. In Lot 1, the high priority remediation areas were a corridor filling in the space between the boundary with Lot 17 and the forested firebreak which is designated as a potential other offset area, and a large rectangular area in the middle of Lot 1 that had been cleared. The total area of high priority remediation areas on "Colorado" was 107 ha.

64 The experts estimated that the vegetation communities cleared in the high priority remediation areas on "Colorado" comprised 80% Brigalow-Belah open forest/woodland (86 ha) and 20% Poplar Box-Belah woodland (21 ha).

65 The high priority remediation areas on "Strathdoon" were a larger area to the south of the access road to the main house and to the west of the eastern boundary, as well as a smaller strip either side of the access road to the main house further west than the high priority offset area along that road. The total of high priority remediation areas on "Strathdoon" was 23 ha.

66 The experts estimated that the vegetation communities cleared in the high priority remediation areas on "Strathdoon" comprised 80% Brigalow-Belah open forest/woodland (18 ha) and 20% Belah woodland (5 ha).

67 The potential or disputed remediation areas on "Colorado" were located in the remaining cleared areas (those not already included as high priority remediation areas). They were located wholly within Lot 17, one area to the south of the saddlebags of the high priority offset areas and another area in the north-east extending northwards from the eastern saddlebag and westwards from the high priority remediation area parallel to the eastern boundary. The total area of potential or disputed remediation areas on "Colorado" was 314 ha.

68 The experts estimated that the vegetation communities that had been cleared in these areas on "Colorado" comprised 25% Poplar Box-Belah woodland (78.5 ha), 35% Brigalow-Belah open forest/woodland (110 ha), 15% Belah woodland (47 ha) and 25% unidentified vegetation (78.5 ha).

69 The potential or disputed remediation areas on "Strathdoon" were located on the remaining cleared areas (those not already included in the high priority remediation areas). They were located south of the high priority offset area in the north-east and wrapped around the main house on "Strathdoon". The total area of potential or other remediation areas on "Strathdoon" was 50 ha.

70 The experts estimated that the vegetation communities that had been cleared in these areas on "Strathdoon" comprised 30% Poplar Box-Belah woodland (15 ha), 40% Belah woodland (20 ha) and 30% Brigalow-Belah open forest/woodland (15 ha).

71 The Director-General's remediation areas included all of the high priority remediation areas and the potential or disputed remediation areas on "Colorado" and "Strathdoon" but none of the offset areas, whether high priority offset areas or potential other offset areas.

72 The applicants' proposed remediation areas included parts of the high priority offset areas and parts of the other potential offset areas, but none of the remediation areas, whether high priority remediation areas or potential or disputed remediation areas.

73 Mr Sinclair, called by the applicants, explained the rationale for selecting the offset areas rather than the cleared areas for remediation. The offset areas included areas of vegetation that have been thinned in the past, which can be rehabilitated to their undisturbed vegetation cover. Mr Sinclair said:

These offsets have the advantage over cleared/cropped areas in that:

a. As the thinned areas have not been previously cropped, the rehabilitation of trees there is more likely to be successful.

b. The thinned areas contain species of belah (Casuarina cristata), rosewood (Alectryon oleifolius), poplar box (Eucalyptus populnea ssp. bimbil) and brigalow (Acacia harpophylla), and therefore will naturally regrow these species.

c. Trees regrown in an area of thinned vegetation are likely to meet canopy height quicker than trees establishing within previously cropped areas.

d. The offsets can be located strategically to contribute to vegetation corridors and buffers, and could therefore provide a greater environmental benefit.

e. The use of offsets can meet and arguably exceed the objects of the Act, namely to:

i. to improve the condition of existing native vegetation, particularly where it has high conservation value, and

ii. to encourage the revegetation of land, and the rehabilitation of land, with appropriate native vegetation, in accordance with the principles of ecologically sustainable development.

f. The use of offsets can meet part of the purposes of the Remedial Work Direction and section 38 of the Act, namely to repair the damage caused by the clearing.

74 On "Colorado", three remediation areas were proposed by the applicants. Remediation Area A comprised the potential other offset area on Lot 17 to the west and north of the western saddlebag of the high priority offset area. Remediation Area B comprised a small part in the middle of the eastern saddlebag of the high priority offset area. Remediation Area B was disconnected from Remediation Area A. Remediation Area C comprised the whole of the high priority offset area in the south-eastern corner of Lot 1. On "Strathdoon", one remediation area was proposed by the applicants, Remediation Area D, which comprised most of the larger high priority offset area in the north-eastern corner as well as a smaller strip of potential other offset area running along the eastern boundary from the north-eastern corner to the access road to the main house on "Strathdoon".

75 The experts estimated that the vegetation communities in Remediation Areas A, B and C on "Colorado" comprised 40% Poplar Box-Belah woodland (54 ha), 10% Broad-leaved Ironbark (13 ha), 10% Belah woodland (13 ha) and 40% Brigalow-Belah open forest/woodland (54 ha). The vegetation communities in Remediation Area D on "Strathdoon" comprised 50% Poplar Box-Belah woodland (16 ha) and 50% Brigalow-Belah open forest/woodland (16 ha).

76 Mr Sinclair evaluated Remediation Areas A, B and C on "Colorado" as follows:

a. Remediation Areas B and C:

i. contain vegetation communities that contain species identified in the Remedial Work Direction as trees cleared including belah (Casuarina cristata), rosewood (Alectryon oleifolius), Poplar Box (Eucalyptus populnea ssp. bimbil) and brigalow (Acacia harpophylla).

ii. have been thinned, and would be good areas for offset remediation as trees will meet canopy heights quicker than if they were regrown in previously farmed areas.

iii. currently have a maximum of 40 trees per ha and if the required 100 trees per ha is applied (as per the Remediation Work Direction), an additional 60 trees per ha would be required to be grown.

iv. have areas which equate to about 33 ha in total and would allow the establishment of about 2,000 new trees.

b. Remediation Area A does not have the potential to be thickened. However further protection of this area would be of equal benefit to Colorado. This area is about 80 ha.

77 Mr Sinclair evaluated Remediation Area D on "Strathdoon" as follows:

a. Remediation Areas:

i. contain vegetation communities that contain species identified in the Remedial Work Direction as trees cleared including belah (Casuarina cristata), rosewood (Alectryon oleifolius), poplar box (Eucalyptus populnea ssp. bimbil) and brigalow (Acacia harpophylla).

ii. have been thinned, and would be good areas for offset remediation as trees will meet canopy heights quicker than if they were regrown in previously farmed areas.

iii. currently have a maximum of 40 trees per ha and if the required 100 trees per ha is applied (as per the Remediation Work Direction), an additional 60 trees per ha would be required to be grown.

iv. have areas which equate to about 35 ha in total and would allow the establishment of about 2,100 new trees.

78 I consider that the areas within which remedial work should be directed to be carried out should primarily be the high priority offset areas identified by the experts because this will likely provide the greatest conservation gain to offset the conservation loss caused by clearing native vegetation in the cleared areas. The experts agreed that these areas should be afforded the highest priority as offsets. These areas should include, in Lot 17 of "Colorado", the two saddlebag-shaped high priority offset area (including Remediation Area B proposed by the applicants) and the isolated patch of high priority offset area near the boundary of Lot 17 with Lot 1, and in Lot 1 of "Colorado", the high priority offset area in the south-eastern corner (corresponding with Remediation Area C proposed by the applicants). I do not consider that there is now sufficient conservation value in including the small patch of native vegetation in the north-east of Lot 17 that the experts had designated as a high priority offset area as, subsequent to their designation of that area, further clearing has reduced its size and density and it has become an island in a sea of commercial crops. The high priority offset area in the north-east corner of "Strathdoon" (including Remediation Area D proposed by the applicants) should also be included.

79 These high priority offset areas should be supplemented by inclusion of parts of the potential other offset areas, high priority remediation areas, and potential or disputed remediation areas so as to improve the configuration and area (such as to reduce detrimental edge to area ratios) and to improve connectivity between vegetated areas.

80 The potential other offset areas that I consider should be added should include, on Lot 17 of "Colorado", an area to the north of the western saddlebag of the high priority offset area (which is the eastwards protuberance of Remediation Area A proposed by the applicants) to widen the connection between the saddlebags. I do not consider it is necessary to add the balance of the potential other offset area west of the western saddlebag of the high priority offset area (the balance of the applicants' Remediation Area A). The experts agreed that there is little potential for thickening of the canopy and hence conservation gain in this area. There are also pockets of endangered ecological communities in this area that could not be cleared in any event and hence there would be no additionality by requiring the conservation of these pockets within a remediation area. Similarly, I do not consider it is necessary to include the forested firebreak (of predominately Brigalow) on Lot 1 running parallel to the boundary of Lot 17 of "Colorado". Again, the experts agreed that there is little potential for thickening of the canopy and hence conservation gain in this area and no additionality as the landholder intends to conserve it in any event as a firebreak.

81 On "Strathdoon", the potential other offset area that I consider should be added is a strip along the eastern boundary of "Strathdoon" abutting the high priority offset area down to the access road to the main house (also included in the applicants' Remediation Area D).

82 The high priority remediation areas that I consider should be added should include a strip along the northern boundary of Lot 1 on "Colorado", between the boundary and the forested firebreak (thereby linking that forested firebreak with the western saddlebag of the high priority offset area on Lot 17), and a corridor linking that remediated strip with the isolated patch of native vegetation in the south of Lot 17 of "Colorado". I do not consider that there is sufficient conservation value in adding the strips of high priority remediation areas to connect with the isolated patch in the north-east of Lot 17 as that patch has now been significantly compromised.

83 The potential or disputed remediation areas that I consider should be added are a strip lying to the south of the narrow connection between the two saddlebags of the high priority offset area on Lot 17 of "Colorado" (again to widen the area around that connection) and a strip to the south of the high priority offset area in the north-east of "Strathdoon" (to improve its configuration).

84 Having determined the location of the areas on the properties where remediation offers greater conservation gain, the next question is whether the vegetation communities in these areas will sufficiently approximate the vegetation communities cleared in the cleared areas so as to afford "like for like" offsetting.

The nature of the areas to be remediated

85 Prior to their clearing, the areas on "Colorado" and "Strathdoon" supported three vegetation communities, Brigalow-Belah open forest/woodland (VCA ID 35), Belah woodland (VCA ID 55) and Poplar Box-Belah woodland (VCA ID 56). Within the Border Rivers-Gwydir Catchment, these three communities have been extensively cleared. The extent of the areas cleared has been estimated as being 90% Brigalow-Belah open forest/woodland, 85% Belah woodland and 80% Poplar Box-Belah woodland. The high percentage losses of these communities means that they are of conservation concern. Unless remaining stands of these communities are assessed to be of low condition, permission to clear under the Native Vegetation Act would not be expected to be given, according to Dr Nadolny. Although there had been no formal assessment prior to the clearing, Dr Nadolny later assessed that the vegetation on "Colorado" and "Strathdoon" would not have been in the low condition category.

86 There are additional vegetation communities occupying smaller areas within the properties but they were not part of the cleared areas and thus do not play a role in "like for like" remediation.

87 The three vegetation communities differ in both floristic composition and structure. Even prior to any clearing, the Poplar Box-Belah woodland would have characteristically had a more open canopy than the other vegetation communities. The Brigalow-Belah community naturally displays variation in canopy density from woodland to open forest (and possibly even high densities). Mr Hall provided data on canopy composition, tree height and stem diameter (DBH) from transects within native vegetation stands on both "Colorado" and "Strathdoon". The data permits calculation of the range of tree densities present. The tree density within each community varies spatially and temporally reflecting environmental and demographic variations. As a result of the history of agricultural use, large parts of the canopy over the two properties have been extensively thinned. Within the areas cleared there were parts in which trees were very widely separated but even isolated or paddock trees have habitat and connectivity value. There is little information about the ground layer, but Dr Nadolny estimated that more than 50% of the ground layer was composed of native species.

88 The experts agreed in oral evidence, in response to questions from the Court, on the approximate proportions (and hence areas) of the three vegetation communities that had been present in the cleared areas and in the various categories of offset areas and remediation areas identified in the map in their joint expert report. These proportions and areas of the three vegetation communities have been set out in the preceding section of the judgment. The experts did not proffer, nor were they asked for, a rough vegetation map graphically depicting the distribution of the three vegetation communities on the properties. Hence, in so far as I consider that only parts of particular mapped categories of offset and remediation areas should be included in the remediation areas, there is some uncertainty as to the representation and distribution of the vegetation communities in these remediation areas.

89 Doing the best I can with the information available, I consider that each of the three vegetation communities should be represented in the remediation areas that I consider appropriate. The relative proportions between the communities in the remediation areas will also be similar to those in the cleared areas. In the cleared areas of "Colorado", Brigalow-belah open forest/woodland was the largest community, Poplar Box-Belah woodland was the next largest and Belah woodland was the smallest, and in the remediation areas I consider appropriate, this relativity in size should be replicated. In terms of area covered by the vegetation communities, there will be some variation between the areas of those communities in the cleared areas and the areas of those communities in the remediation areas. To a significant extent this is because the aggregate size of the remediation areas I consider appropriate is less than the aggregate size of the cleared areas. The areas of Brigalow-Belah open forest/woodland in the remediation areas will be less, Poplar Box-Belah woodland about the same, and Belah woodland greater than the areas of those communities in the cleared areas.

90 For "Strathdoon", the relative proportions between the three vegetation communities may change. The high priority offset area in the north-east of "Strathdoon" includes another vegetation community of Silver-leaf Ironbark/Poplar Box that was not in the cleared areas. The inclusion of this additional vegetation community alters the relative proportions between the other three vegetation communities. In particular, the relative sizes of Belah woodland and Poplar Box-Belah woodland may be less than the sizes of those communities in the cleared areas. In addition, because the aggregate size of the remediation areas is less than that of the cleared areas, the size of the Belah woodland and Poplar Box-Belah woodland communities will be less than they were in the cleared areas.

91 The remediation areas that I consider appropriate, therefore, will provide an approximation of "like for like" offsetting, rather than an exact replica.

92 The next question is how much of these areas that I have identified as being appropriate to be remediated in order to achieve conservation gain for the affected vegetation communities should be included so as to be proportionate to the damage caused by the clearing of native vegetation on the properties.

The areal extent of the remedial work

93 The Director-General contended that the aggregate area that should be remediated should equate with the aggregate area from which native vegetation was cleared. Mr Spiers, a remote sensing scientist with OEH, estimated that the aggregate of the areas from which native vegetation was cleared between 1 November 2011 and 18 January 2012 was about 421 ha on "Colorado" and 73 ha on "Strathdoon". The Director-General contended that the applicants should be directed to remediate all of the areas cleared, so that the aggregate of the remediation areas would be the same as the aggregate of the cleared areas.

94 The applicants contested that they should be required to remediate all of the areas cleared on "Colorado" and "Strathdoon" for a variety of reasons, some financial and some ecological. The financial reasons included the prohibitively high cost of complying with the remedial work directed by the Director-General (including fencing, weed management and direct planting), the loss of income from being unable to commercially crop the areas, and the precarious state of the applicants' finances. The ecological reasons included that remediation of the cleared areas to the standard required by the Director-General, having regard to their current ecological state after three seasons of ploughing, herbicide application and cultivation, would be highly uncertain and involve a disproportionate response to the damage caused by the clearing of native vegetation in those areas.

95 The applicants contended that, prior to November 2011, the vegetation in the areas cleared was already highly modified as a result of previous clearing for agricultural use, large parts of the cleared areas did not contain trees and much of the understorey plants and groundcover in the cleared areas was non-native vegetation. The applicants contended that to require the remediation of all of the cleared areas to an undisturbed natural condition would be to more than offset the damage caused by the clearing of native vegetation on the properties.

96 For example, the Director-General's direction for remedial work required a density of 100 live stems of trees per ha, yet on Mr Spiers' counts of the number of trees cleared within the total areas cleared, there was an average of only 6.5 trees per ha over the 421 ha cleared on "Colorado" and 9.5 trees per ha over the 73 ha cleared on "Strathdoon". The applicants contended, therefore, that the Director-General's direction for remedial work would result in a disproportionate improvement in the condition of the native vegetation in the cleared areas.

97 To illustrate the lack of proportion between the remedial work required by the Director-General's direction for remedial work and the clearing of the native vegetation on the properties, Mr Sinclair estimated the aggregate of the areas beneath the canopies of the trees cleared. He estimated the aggregate area of the projected canopy cover of the trees cleared on "Colorado" to be 29.9 ha and on "Strathdoon" to be 8.8 ha.

98 Calculating the area of native vegetation to be remediated based on areas of projected canopy cover cleared is particularly problematic with woodland and open forest communities where the definition of the communities and the functioning of the communities depends on there being spaces between the trees. In a case involving Cumberland Plain Woodland (an endangered ecological community) an approach to determine the area of the community on-site by limiting it to the areas immediately around the trees was rejected by the Court: Commercial & Industrial Property Pty Ltd v Holroyd City Council [2013] NSWLEC 1000 at [26]-[43]. Vegetation communities are more than just the sum of canopy areas of the tallest stratum, such as trees. While the composition of the canopy is important to characterise communities and to permit their recognition, it is the totality of vegetation which provides the structural framework for habitat and primary productivity, which is utilised by the range of biodiversity which forms the ecological communities.

99 Perhaps recognising these difficulties with the use of projected canopy cover area, the applicants did not contend, in their final submissions, that the calculated areas of 29.9 ha for "Colorado" and 8.8 ha for "Strathdoon" should be the maximum areas that should be remediated, but only that these calculations revealed how disproportionately large were the remediation areas required by the Director-General.

100 In fact, at the hearing, the applicants proposed remediation areas of considerably larger size than these calculated projected canopy cover areas. The applicants calculated the aggregate area of their proposed Remediation Areas A, B and C on "Colorado" to be 134 ha and of Remediation Area D on "Strathdoon" to be 35.4 ha. These figures were simply calculations of the areas contained within the Remediation Areas drawn on the applicants' map attached to their alternative remedial directions. The figures were not based on the calculations of the area of projected canopy cover of the trees cleared on the properties or the area needed to replace the number of trees cleared on those properties. Instead, Remediation Areas A, B, C and D were located and selected by a process whereby Mr Sinclair and Mr Hall initially proposed remediation areas, based on science, from within the high priority offset areas and potential other offset areas that they had identified as being appropriate offsets and then the applicants picked from these proposed areas those areas or parts of areas they preferred having regard to their plans for future agricultural use of the properties. The applicants' preferred areas became Remediation Areas A, B, C and D.

101 Notwithstanding this process for selecting the remediation areas, Mr Sinclair sought to support their resultant size by calculations of the area required to replace the number of trees cleared. For example, using Mr Spiers' range of 2,437 to 2,979 trees cleared on "Colorado", Mr Sinclair opined that if many of those trees were assumed to be of significant age (many over 100 years) and of habitat value, it may be necessary to allow regeneration of more trees than the number cleared. Mr Sinclair suggested that typical offset ratios of trees generally range from three to five times the number of trees cleared (considering that the trees will eventually regrow to a similar habitat value). This would equate to roughly 7,300 to 14,900 trees. To remediate 7,300 to 14,900 trees at a density of 100 trees per ha would equate to a remediation area of between 73 ha to 149 ha. The total area of the applicants' Remediation Areas A, B and C on "Colorado" was 134 ha. This was in the range that Mr Sinclair had calculated for the area needed to remediate the required number of trees. Hence, he considered that remediating Remediation Areas A, B and C at 100 trees per ha would "meet and arguably exceed" the remediation needed to address s 38 of the Native Vegetation Act.

102 Mr Sinclair's approach suffered from a number of drawbacks. First, Mr Sinclair did not give a source for his suggested offset ratios for trees and hence it was not verifiable from the scientific literature or experimental data.

103 Secondly, while accepting the general proposition that a positive offset ratio may be desirable, the appropriate offset ratio for trees may vary between vegetation communities. Mr Hall's data demonstrated that 100 trees per ha was within the range of canopy tree densities found in reference stands of the relevant communities, but some stands of Poplar Box-Belah woodland have densities of around 60 trees per ha. An average density of 100 per ha is reasonable, but not every hectare would have 100 trees. If the target were to be couched in terms of numbers of individual trees, the areas required might be larger than those based on the applicants' current calculations.

104 Thirdly, tree density within each vegetation community in the cleared areas of "Colorado" and "Strathdoon" may also have varied spatially and temporally reflecting environmental and demographic variations on those properties. This may mean that, instead of applying a uniform, typical offset ratio for all of the trees in all of the vegetation communities cleared on "Colorado" and "Strathdoon", different and individualised offset ratios may have been more appropriate.

105 Finally, Mr Sinclair's approach focussed only on the trees cleared and ignored the habitat and connectivity value of understorey plants and groundcover beneath and between the trees. Dr Nadolny estimated that 50% of the ground layer in the cleared areas was composed of native species. Accounting for the understorey plants and groundcover on the properties may require greater offset ratios and hence larger sized remediation areas than allowed by Mr Sinclair.

106 Nevertheless, the ecological reasons advanced by the applicants do suggest that it would be disproportionate to require the offset areas to be of the same aggregate size as the aggregate size of the cleared areas. In the circumstances of this case, the conservation loss caused by the clearing of the native vegetation in the cleared areas might be able to be offset by requiring remediation of a lesser sized aggregate area provided the offset areas selected meet the criteria of being appropriately located and shaped, comprise similar vegetation communities to those cleared, and have potential for measurable conservation gain of similar magnitude to the conservation loss caused by the clearing.

107 In my view, the remediation areas that I have earlier described meet these criteria and are of an areal extent that is likely to require remediation of native vegetation proportionate to the native vegetation cleared on "Colorado" and "Strathdoon" and the damage caused by that clearing. Because the areas I have identified differ from the areas proposed by either the Director-General or the applicants, it is not possible to calculate the precise areas involved. Nevertheless, an approximation can be made.

108 On "Colorado", the aggregate of, on Lot 17, the high priority offset areas (except for the small patch in the north-east of Lot 17) together with small sections of an adjoining potential other offset area, a high priority remediation area and a potential or disputed remediation area on Lot 17, and, on Lot 1, the high priority offset area together with the narrow strip of high priority remediation area on Lot 1, would be around 290 ha. On "Strathdoon", the aggregate of the high priority offset area in the north-east together with a small strip of adjoining potential other offset area to the east and a strip of potential or disputed remediation area to the south would be around 55 ha.

109 The locations of these areas are similar to those of the remediation areas proposed by the applicants and are justified by similar ecological considerations. The sizes are larger than those proposed by the applicants. One reason is that, on "Colorado", I have included nearly all of the high priority offset areas for restoration ecology reasons rather than, as the applicants preferred, for agricultural and financial reasons, including only a small part of the eastern saddlebag of the high priority area and omitting the western saddlebag and instead inserting a smaller part of the potential other offset area. Another reason is that, on both "Colorado" and "Strathdoon", I have added small adjoining areas, again for restoration ecology reasons, to improve the configuration and connectivity of the high priority offset areas. The resultant sizes of the remediation areas on "Colorado" and "Strathdoon" are, therefore, ecologically justifiable and proportionate to the damage caused by the clearing of the native vegetation on the properties.

The specifications for the remedial work

Introduction

110 The parties disagreed on the specifications for the remedial work. To a significant extent, the disagreement was a consequence of each party's selection of different land to be remediated, the Director-General selecting the areas that had been cleared of native vegetation and the applicant selecting offset areas that are still vegetated. The remedial work required necessarily differed between these different types of areas. However, there were still points of disagreement as to the degree of specificity required and the wording of the specifications. The points of disagreement fell into the following categories: period of the remedial work direction; fencing and stock management; weed, exotic species, commercial crop and non-native plant management; fire management; assisted regeneration; direct planting; thinning; records; reporting; and property vegetation plan. I will deal with each category.

Period of the remedial work direction

111 The Director-General's remedial work directions each required the applicants to perform remedial works on the property for a period of 15 years from the date of the direction. The applicants' remedial work directions did not expressly specify a period. Originally, the applicants had specified a date until which the applicants were required to monitor of 1 July 2020 (a period of five years). At the hearing, one of the experts called by the applicants, Mr Hall, said this was a typographical error and the date should have been 1 July 2030 (a period of 15 years). The applicants corrected the date in their revised remedial work directions.

112 I consider a period of 15 years for monitoring is appropriate, but the same period also needs to be applied to other work and actions required by the remedial work directions, unless a lesser time is specified. I agree with the Director-General that the remedial work directions should expressly state up front that the landholders are required to perform remedial works on their properties within the time specified, if any, for each work, or where no time is specified, for a period of 15 years from the date of the directions.

Fencing and stock management

113 The Director-General and the applicants agreed that the remedial work directions should require that livestock be excluded from the remediation areas, at least until regeneration of trees has progressed to a stage where they are unlikely to be affected by browsing. They differed, however, on the specificity of prescription required.

114 The Director-General's remedial work direction required the applicants to construct a fence around the entire perimeter of the remediation areas (which were the cleared areas of 421 ha on "Colorado" and 73 ha on "Strathdoon"). The Director-General's direction gave detailed specifications for the fence, including the material and spacing of fence posts; the type, number, location and spacing of strands; the type and use of gates in the fence; and the ongoing inspection, repair and replacement of the fence.

115 The applicants adduced evidence that construction of a fence along all of the boundaries of the remediation areas to the specifications required by the Director-General would be prohibitively expensive. This was one of the financial reasons advanced by the applicants in their opposition to the Director-General's remedial work directions.

116 The applicants' alternative remedial work directions nominated different remediation areas and were less prescriptive in how the objective of exclusion of livestock from the remediation areas should be achieved. The applicants' direction identified an outcome or objective that must be achieved and left to the landholders the choice of actions that might best achieve the prescribed outcome or objective, rather than prescribing particular actions such as the need for and the location and type of fencing.

117 The applicants' direction also permitted the continued use and maintenance of existing access roads and tracks within the remediation area. This was not contested by the Director-General.

118 In principle, I agree with the applicants' approach which accords with the principle of subsidiarity that environmental outcomes or objectives, having been established by the remedial work direction, should be pursued in the most cost effective way, by enabling the person subject to the remedial work direction, who is best placed to maximise benefits or minimise costs, to develop their own solutions and responses to best achieve the outcome or objective mandated by the direction. The remedial work direction should specify the outcome (such as exclusion of stock from remediation areas) and allow the landholders to develop solutions and responses that best achieve that outcome.

119 For example, the applicants might choose to achieve the outcome by not grazing livestock on their properties at all, but only crop the land, in which event the erection of fencing around the boundaries of the remediation areas within the properties would be unnecessary. In so far as fencing might be required to achieve that outcome, it is unnecessary to prescribe detailed specifications for the fencing - again it will be sufficient to prescribe the outcome (that the fencing effectively exclude livestock from the remediation areas) and allow the landholders to choose the location and type of fencing that will achieve that outcome.

120 During the hearing, the experts considered whether grazing within the remediation areas could occur at some time during the term of the remedial work direction without compromising the rehabilitation of those areas. The experts agreed that some grazing could be permitted but only by certain types of livestock (cattle and sheep and not goats), only when the regeneration of trees had progressed to a stage where they were unlikely to be affected by browsing (such as when there is an average of 90 live stems of trees per ha over a height of 3 m), and only if there is a sufficient proportion of groundcover to be browsed by livestock (not less than 70%). The applicants' revised remedial work direction incorporated this evidence.

121 I consider this course would be appropriate. However, I do not agree with the applicants that it is necessary to make exception for grazing by livestock if the properties are drought declared and the remediation areas are grazed by native herbivores. The regeneration of the remediation areas should not be compromised in times of drought by detrimental grazing by livestock. The fact that native herbivores might graze in the remediation areas during times of drought does not justify increasing further the grazing pressure on the regenerating vegetation.

122 I consider, therefore, that the terms of the remedial work directions dealing with fencing and stock management should be generally based on the applicants' revised direction, but with the changes I have noted as well as some modification of language to improve clarity.

Weed, exotic species, commercial crop and non-native plant management

123 The parties agreed that the remedial work directions should require the landholders to control and manage weeds in the remediation areas but differed as to the non-native species that should be the subject of the directions and the manner of control that should be required.

124 The Director-General's direction originally required the landholders to destroy "any exotic species, commercial crops or non-native plant species" found at any time in the remediation areas, by either spot application of herbicide or by removal by non-mechanical means, as soon as practicable and in any event within seven days of becoming aware. Exotic species were defined in the definitions and interpretations section of the remedial work directions to mean "species introduced from outside of the area concerned; in the case of New South Wales, from overseas and/or interstate" and included a list of specified weed species and any non-native cereal crop.

125 The Director-General's original direction also required inspection of the remediation areas four times each reporting period with a minimum of 80 days between each inspection.

126 The applicants contended that the Director-General's requirements were impractical and expensive. The applicants proposed instead that they should only be required to manage exotic species if they exceeded a certain threshold of infestation of the properties (such as more than 50% of the ground layer). They also contended that the exotic species required to be managed should be limited to six specified weed species and plants listed as noxious in the Moree Plains Shire. They proposed specific procedures for inspection and control of these weed species.

127 The experts discussed, in their concurrent evidence at the hearing, the competing directions for weed management. As a consequence, both the Director-General and the applicants revised their respective remedial work directions to reflect the experts' evidence. Nevertheless, many of the essential points of difference remained.

128 I consider that the terms of the Director-General's revised direction generally better achieves the objective of management of exotic species that might be invasive or otherwise injurious to the success of the remediation. The Director-General's revised direction identified particular exotic plant species that are already known to be of concern on the properties but did not limit the landholders' obligations to these species but rather required the landholder to inspect for and maintain a list of other exotic species that may be of concern.

129 The Director-General's revised direction for inspection was less onerous than the original direction, requiring fewer inspections with greater time between inspections. It accorded with the applicants' revised timings for inspections. I consider these are reasonable.

130 The Director-General's revised direction specified methods of control of African boxthorn that were similar to those required by the applicants' revised direction. I consider these to be appropriate. The Director-General's revised direction also specified other means of controlling other weeds within longer periods of time (30 days if the plant is actively reproducing or 90 days otherwise). These were shorter than the applicants' revised timings (control commenced within two months and completed within six months). I consider the Director-General's timings are more likely to effectively control weeds and will not be unduly onerous on the landholders.

131 The Director-General's revised direction required control of any commercial crops within the remediation areas. This was based on Dr Nadolny's evidence at the hearing. The applicants' revised direction did not address this issue. As the remediation areas I consider appropriate include small parts of the cleared areas, which might have commercial crops, and large parts of the remediation areas will adjoin land under crop, the issue of commercial crops being in the remediation areas and hindering regeneration is real and needs to be addressed. I consider the methods of control of commercial crops in the Director-General's revised direction are appropriate.

132 The applicants' revised direction included a provision that: "Weed control must be done in a way that minimises the impact upon native woody vegetation or native groundcover and does not result in a contravention of another condition in this remedial direction". This is an appropriate provision to be included.

Fire management

133 The applicants originally proposed in their alternative remedial work directions that prescribed burning be permitted in the remediation areas. At the hearing, the experts agreed that prescribed burning posed an unacceptable risk to regenerating vegetation in the remediation areas. As a consequence, the applicants' revised direction deleted the provisions permitting prescribed burning.

134 The only fire management provision that remained was that: "The Remediation Area must be protected from wildfires through the provision of appropriate firebreaks and the active suppression of wild fires. Firebreaks, where needed, should be situated outside the Remediation Area." The Director-General agreed that this provision was appropriate. I agree that it should be included.

Assisted regeneration

135 The Director-General's remedial work directions originally required assisted regeneration of the areas from which native vegetation had been cleared between 1 November 2011 and 18 January 2012. At that time, the Director-General believed that the cleared areas could be regenerated with assistance. The direction required the landholders to prepare the ground for regeneration by distributing vegetative debris that was in stacks and piles evenly across the remediation areas and burning it to stimulate seed germination. As events happened, after the clearing, the landholders pushed the debris into piles and burnt it and raked out the ash, but not in the manner later prescribed by the Director-General's directions. Over the next three years, the cleared areas were ploughed, sprayed with herbicide and cultivated with commercial crops.

136 At the hearing, the experts agreed that, having regard to what had occurred in the cleared areas, assisted regeneration of the cleared areas was very uncertain and unlikely to be successful. As a consequence, the Director-General's revised direction deleted the original requirements for ground preparation and seed stimulation.

137 The applicants' alternative remedial work directions specified different locations for the remediation areas, being the land that was still vegetated rather than the cleared and now cropped land. Accordingly, the Director-General's original requirements for ground preparation and seed stimulation, which were devised for the cleared land, were not appropriate for the vegetated land.

138 At the hearing, the experts considered that the methods of ground preparation proposed in the applicants' directions were appropriate provided that an extra safeguard was included that any ground disturbance be conducted in a way that ensured that existing regenerating trees were protected. The applicants' revised directions incorporated this safeguard.

139 I consider that the methods of ground preparation for assisted regeneration proposed in the applicants' revised directions are suitable for the remediation areas I consider to be appropriate.

140 Both the Director-General's and the applicants' directions required the landholders to monitor the progress and success of the assisted regeneration. At the hearing, the period of monitoring was agreed to be for the term of the remedial work direction, namely 15 years. The frequency of inspection was agreed to be once every 12 months. The agreed performance standard for the assisted regeneration was that the native vegetation within the remediation areas reach a density of at least 100 live stems on average per ha as determined by the quadrat method.

141 However, at the hearing, concern was expressed as to whether there should be another performance standard to ensure representation of the key tree species in the regeneration. The Director-General's revised direction, therefore, included an additional performance standard that the native vegetation in the remediation areas "has an average of at least 20 plants/ha of each of Brigalow, Belah and Poplar Box over the entire remediation area" for each property. The applicants' revised direction did not address this issue.

142 The applicants' revised directions included a different, additional performance standard specifying the minimum number of native trees that should exist on each property by the end of the term of the remedial work direction. For "Colorado", the suggested provision was: "The Remediation Areas on the property must also contain a minimum of 9,700 native trees not defined as 'remnant native vegetation' by 1 July 2030. Such trees may be included, or be in addition to, the minimum density figure from 4.4 above [the provision fixing the density performance standard of 100 live stems on average per ha]". For "Strathdoon", the minimum number of native trees was 3,100. The figures of 9,700 native trees for "Colorado" and 3,100 trees for "Strathdoon" were based on Mr Sinclair's calculations of the number of trees needed to offset the trees cleared on the respective properties and also on the size of the remediation areas proposed by the applicants.

143 I agree that it is appropriate to specify in the remedial work direction a density performance standard at the agreed density of 100 live stems on average per ha. However, I do not consider that it is appropriate to include the applicants' minimum tree number performance standard. The applicants' minimum tree numbers for "Colorado" and "Strathdoon" are based on offset ratios and locations and sizes of remediation areas on the properties that I consider are inappropriate. Furthermore, I do not consider that adding a minimum tree number performance standard will assist in the achievement of the objective of assisted regeneration of the remediation areas on the property.

144 The Director-General's additional performance standard requiring certain densities of Brigalow, Belah and Poplar Box, although well intentioned, might have undesired ecological consequences. As I have noted earlier, although three vegetation communities are known to be present on the properties, and in the remediation areas that I consider appropriate, the spatial distribution of these communities across the properties and in the remediation areas is unknown. Requiring that each and every hectare of the remediation areas have at least 20 plants each of Brigalow, Belah and Poplar Box may introduce an unnatural uniformity in the vegetation community across the entire remediation area, altering the natural, spatial distribution of the three vegetation communities. In the absence of better data, I consider a precautionary approach should be adopted and this requirement should not be included.

145 Otherwise, the agreed monitoring regime should be included in the remedial work directions.

Direct planting

146 The parties agreed that direct planting should be required if assisted regeneration of the remediation areas is not successful. The parties disagreed as to the trigger for determining whether assisted regeneration had been successful. The Director-General's revised remedial work direction used as the trigger the failure to achieve the two density performance standards of 100 live stems on average per ha and 20 plants per ha of each of Brigalow, Belah and Poplar Box, while the applicants used only the first density performance standard. I consider the applicants' approach is preferable for the reasons given earlier.

147 The parties agreed that the time period by which the density performance standard for assisted regeneration must be achieved should be two years from the commencement of the remedial work direction. If the density performance standard is not achieved by that time, direct planting would be required. The Director-General proposed that any required direct planting should be completed within one year afterwards while the applicants proposed two years to complete the direct planting "unless the work is delayed by mutual agreement due to climatic conditions or other unforeseen events". I consider that a period of one year after the requirement for direct planting is triggered should be sufficient to undertake the work and that allowing a longer time would defer the remediation process. I agree with the applicants' suggestion that the trigger date and completion date for direct planting should be able to be extended if the properties are drought declared.

148 The Director-General's revised direction included specifications for care after completion of initial planting, including watering, mulching, controlling weeds and installing tree guards around seedlings. The applicants opposed such prescriptions, contending that the landholders should be allowed to choose the best methods of post-planting care. The applicants submitted that they will be required to meet the density performance standard, including by replacing any plants that die. This will be sufficient without prescribing the precise post-planting care requirements.

149 I agree with the applicants. The applicants will be required to achieve the outcomes and objectives of direct planting set out in the remedial work direction and they should be allowed to choose appropriate solutions and responses to ensure they achieve the prescribed outcomes and objectives. The methods of post planting care specified by the Director-General are some of the methods that might be appropriate in certain circumstances but they are not necessarily the only ones or necessarily appropriate in all circumstances. For example, all of the specified methods might not be appropriate if direct seeding is employed rather than planting out of seedlings.

150 The mix of plant species to be grown and the source of seed of these species were issues between the parties. However, at the hearing, the experts agreed that at least 80% of the plants grown from seed should comprise Belah, Western Rosewood, Poplar Box and Brigalow, and the remaining species should comprise native tree species known to occur on the property. It will be necessary for the experts to identify the names of these other tree species and to include reference to these species in a schedule to the remedial work directions.

151 The Director-General's revised direction required the establishment of ripped rows across the remediation areas but the applicants' revised direction did not address this matter. Again, ripping might be an appropriate method to prepare the ground for direct planting in some parts of the remediation areas, but not necessarily in all parts or at all times. In already vegetated areas, ripping might cause damage to existing native trees and shrubs. I consider it is preferable not to mandate ripping in the remedial work direction, but rather to allow the applicants to choose the method of ground preparation that is appropriate at the particular time and particular location. They can report on the selected method of ground preparation in their reports to the Director-General.

152 The parties agreed that the landholders should be required to inspect annually the remediation areas and monitor the success of the direct planting. If the number of planted stems or trees that have died brings the average number of living stems below the density performance standard of 100 live stems on average per ha, the landholders should be required to replace the dead trees or stems to restore the density. Replacement should occur within 100 days of the landholders becoming aware of the requirement. This timeframe could be extended due to legitimate reasons such as drought declaration or unavailability of seedlings. I consider these agreed requirements should be included in the remedial work directions.

Thinning

153 The applicants had originally proposed that thinning could be undertaken in the remediation areas. That was opposed by Dr Nadolny as causing unacceptable environmental damage to regenerating or planted native vegetation. The other experts agreed. As a consequence, the applicants' revised direction prohibited thinning as part of the remedial work but added a note that the need for thinning may require review at some stage. I consider the prohibition on thinning should be included but not the note.

Records

154 The parties agreed on the specifications for record keeping. The applicants' revised direction added a requirement that the record of required work within the remediation area include any ground preparation (such as ripping). I agree with this suggested addition.

Reporting

155 The parties' respective specifications for reporting on the remedial work undertaken differed largely because of the different specifications for remedial work that each party proposed. For example, the Director-General's directions required reporting on compliance with the Director-General's requirements for fencing and stock management but the applicants' directions did not require reporting on these matters. The form of the reports proposed by each party accordingly differed.

156 The Director-General proposed that the landholders should prepare and submit both an initial works report and subsequent monitoring reports while the applicants proposed the preparation and submission of only monitoring reports. I consider it is appropriate for there to be both an initial works report stating what initial works have been undertaken as well as subsequent monitoring reports.

157 The Director-General's directions specified that the monitoring reports should include a description of the regeneration work or activities undertaken and the results of all inspections carried out during the reporting period. The applicants' revised directions required more detail on the various inspections undertaken and proposed a methodology for the annual survey of regeneration. I consider that the monitoring reports should include both the Director-General's and the applicants' suggestions.

158 I also consider that the monitoring reports should be used as part of a process of adaptive management so as to:

(a) describe the work carried out and measures implemented to comply with all requirements of the remedial direction, including performance measures, outcomes or objectives of the remedial work direction;

(b) report on the effectiveness of such work and measures in achieving compliance with the requirements of the remedial direction; and

(c) where there has been non-compliance with any requirement of the remedial direction, report on action taken to improve the effectiveness of such work and measures, or to adopt and implement alternative measures, to achieve compliance and improve environmental performance.

159 It will be necessary for the parties to prepare revised forms for both the initial works report and the monitoring report that reflects the findings I have made on the appropriate specifications for remedial work. These forms will necessarily differ from both the Director-General's forms and the applicant's form as I have agreed on some matters with the Director-General's specifications but on other matters with the applicants' specifications.

Property vegetation plan

160 The applicants' revised direction proposed that the landholders submit a property vegetation plan ('PVP') to the Director-General for approval by the Minister under s 26 of the Native Vegetation Act. The PVP must stipulate that any native vegetation that is planted or grows naturally in the remediation area, apart from remnant native vegetation, will be "protected regrowth" as defined in s 10(1)(a) of the Native Vegetation Act. The PVP must further stipulate that "routine agricultural management activities" and other types of native vegetation clearing not provided for in the remedial direction will be prohibited in the remediation area. However, the applicants propose an exception to this prohibition on clearing that would allow limited clearing in the remediation area "to address emergent circumstances such as flood mitigation, to prevent soil loss or to control wild fires, provided that any such clearing does not prevent the objectives of this remedial direction being achieved." The Director-General did not address this issue of a PVP.

161 I consider it is not necessary to include in the remedial work direction a provision requiring the landholders to submit a draft PVP for five reasons. First, the obligations on the landholders to carry out remedial work, and to conserve and not clear existing, regenerating native vegetation, in the remediation areas on the properties will have legal effect by force of the remedial work directions. Approval of a PVP that contains the same requirements is not necessary to give the remedial work directions legal force and effect.

162 Secondly, although the applicants proposed that the draft PVP include two stipulations concerning designated protected regrowth and prohibiting certain clearing except in certain circumstances, otherwise the content of the draft PVP is unknown. It is unknown whether the draft PVP would apply to the whole of the properties, or only land within the remediation areas, and whether the draft PVP would make proposals on the matters in s 28 or s 29 of the Native Vegetation Act, including proposals for clearing of native vegetation on any parts of the properties other than in the remediation areas. I consider it is inappropriate to require the submission of a PVP that has largely unknown content and hence unknown consequences for native vegetation on the properties.

163 Thirdly, the suggested provision only requires the landholder to submit a draft PVP to the Director-General for approval by the Minister. The Minister may or may not approve the draft PVP submitted or may require the draft PVP to be amended before it is approved. There is, therefore, no certainty as to whether the submitted PVP would be approved or as to the content of any PVP that might be approved.

164 Fourthly, the greatest long term protection of native vegetation on land is afforded by a PVP that has been registered by the Registrar General, as a registered plan runs with the land. However, the Registrar General may only register a PVP if the landholders and other persons having a prescribed interest in the land to which the PVP applies consent to the registration of the plan (s 31 of the Native Vegetation Act). The applicants have not proposed the registration of any approved PVP for their properties.

165 Finally, the land owners have a right to submit a draft PVP to the Director-General for approval under s 26 of the Native Vegetation Act in any event; it is not necessary for a remedial work direction to require them to do so.

166 In these circumstances, I consider it is inappropriate to include a requirement in the remedial work direction that the landholders submit a draft PVP to the Director-General for approval by the Minister.

Conclusion and directions

167 I consider the Court should, under ss 38 and 39 of the Native Vegetation Act, revoke the directions for remedial work made by the Director-General on 16 April 2013 and instead make new directions for remedial work for each property that reflect the findings in this judgment. The terms of the new directions for remedial work that I propose to make are set out in the attachments to the judgment (Attachment B.1 for Grant Turnbull as the landholder of "Colorado" and Attachment B.2 for Cory and Donna Turnbull as the landholders of "Strathdoon") together with a map on which I have hand drawn the remediation areas on each of the properties to which the directions will apply (Attachment C).

168 The parties will need to:

(a) delineate accurately the remediation areas on each property on a map that can be attached to each remedial work direction;

(b) discuss and endeavour to agree on the revised forms for the initial works report and the monitoring report reflecting the findings in the judgment, which can also be attached to each remedial work direction;

(c) discuss and endeavour to agree on the list of other native tree species to be used in direct planting that can be included in a schedule to each remedial work direction; and

(d) engross the remedial work directions in a form that can be made.

169 I direct the parties to undertake these tasks and to file the agreed remedial work directions by 9 July 2014. If the parties are unable to agree on the remedial work directions, the parties should file their competing versions by that same date. I will adjourn the hearing to 11 July 2014 at 9.30am at which time I will determine any matters disagreed and make the final orders disposing of the appeals, including making separate directions for remedial work on each property.

170 I make the following orders:

(1) Adjourn the hearing of the appeals to 9.30am on 11 July 2014.

(2) Direct the parties to file agreed remedial work directions, including attached maps and forms, or failing agreement, to file their competing versions of the remedial work directions, by 9 July 2014.

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Attachment A

Attachment B.1

Attachment B.2

Attachment C

Decision last updated: 25 June 2014