Land and Environment Court New South Wales

• Medium Neutral Citation: Turnbull v Director-General, Office of Environment and Heritage (No 2) [2014] NSWLEC 112
• Hearing dates: 11, 17 July 2014 and 31 July 2014 (written submissions)
• Decision date: 31 July 2014
• Before: Preston CJ

Decision

Orders as at [13] and [14]

• Catchwords: APPEAL - clearing of native vegetation - directions for remedial work - final orders made
• Legislation Cited: Native Vegetation Act 2003 s 38
• Category: Consequential orders
• 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

1 On 25 June 2014, I delivered judgment in these appeals indicating that I was minded to uphold the appeals, 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 the judgment. I provided a draft of the terms of the new directions for remedial work but directed the parties to discuss and endeavour to agree on the final terms of the new directions for remedial work including attached maps delineating accurately the remediation areas on each property, the forms for the initial works report and monitoring report, and the schedule of native tree species to be used in direct planting. I adjourned the appeals for these tasks to be undertaken.

2 The parties have discussed and agreed on most of the terms of the new directions and the attachments.

3 The parties agreed that there is a need to make certain changes to the terms of the draft directions I attached to the judgment. These involved correction of some typographical and reference errors, as well as a more substantive change. This was to allow any commercial crop present in the remediation areas at the date of judgment (25 June 2014) to be tended and harvested up to 31 December 2014 but thereafter the exclusion of commercial crops in the remediation areas should apply. I consider this is appropriate in the circumstances given the short time frame involved.

4 There were a number of matters on which the parties disagreed. These were identified by the applicants at the hearing on 17 July 2014. After identification, the Director-General indicated that some of these matters could be agreed. I ruled on the remaining matters in dispute. I now record the reasons for my rulings.

5 First, the applicants requested a contraction of the boundaries of the Remediation Areas to include less of the cleared areas identified by the experts as high priority remediation areas or potential or disputed remediation areas. The applicants contended that the inclusion of these cleared areas has two financial consequences for the applicants: first, the loss of agricultural land and hence income and, second, the higher cost of direct planting and maintenance. I ruled that some refinement of the boundaries could be made and still be consistent with the purposes of inclusion of these cleared areas within the remediation areas. On "Colorado", the refinement would be moving northwards the southern boundary in the area between the two saddlebags on Lot 17 and including only the high priority remediation area within Lot 1 to the south of the boundary of Lot 17 and Lot 1. On "Strathdoon", the refinement would be moving northwards part of the southern boundary of the remediation area, making the arc more symmetrical. These refinements reduce the areas of cleared land within the remediation areas.

6 Secondly, the applicants requested that the dates in paragraphs 5.1 and 5.2 of the remedial work directions for direct planting be extended by two years. The Director-General opposed an extension for that period. I ruled that a one year extension would be sufficient. This meant that the date in paragraph 5.1 would become 1 July 2017, and the date in paragraph 5.2 would become 1 July 2018.

7 Thirdly, the applicants contended that the attached maps depicting the remediation areas should not state the number of hectares and that the two remediation areas on "Colorado" should be designated Remediation Areas A and B. This would have consequential changes to the drafting of the remedial work directions. The Director-General agreed to these changes. I consider they are appropriate.

8 Fourthly, the applicants contested the number of quadrats for monitoring sought by the Director-General, namely 10 for "Strathdoon" and 15 for "Colorado". The applicants argued that monitoring in those numbers of quadrats would be costly. I had earlier ruled that there should be at least two quadrats in each of the three native vegetation communities and two quadrats in the cleared areas. This had the consequence that for "Strathdoon", there should be eight quadrats. The remediation areas on "Colorado" were larger in size and were split over two areas and justified a greater number of quadrats. I ruled that 12 would be appropriate for "Colorado", being two in the smaller remediation area and 10 in the larger remediation area, and including at least two in each of the three native vegetation communities and two in the cleared areas.

9 Fifthly, the applicants requested that they be able to send their monitoring reports to the closest office of the Office of Environment and Heritage, which they said was in Moree rather than Tamworth. The Director-General agreed to redraft the address of the Office of Environment and Heritage to refer to the closest office. This is currently in Dubbo.

10 Sixthly, the applicants requested that the requirement in the monitoring report to describe other works undertaken in the remediation areas, such as track maintenance or feral animal control, should be deleted. The applicants argued it was onerous and costly and would not yield any benefit. I ruled that the requirement should remain. Such other work would likely be undertaken by the applicants irregularly and therefore it would not be onerous or costly to report on the works. Furthermore, information about the other works may be of assistance in understanding the success or otherwise of regeneration and replanting in the remediation areas.

11 I directed the parties to file the agreed final remedial work directions by 22 July 2014 and indicated if this were done I would make the final orders in chambers.

12 The remedial work directions, including the attached maps and forms, have been redrawn to reflect the agreed changes and my rulings. I am now able to make the final orders disposing of the appeals.

13 In proceedings 10355 of 2013, the Court:

(1) Upholds the appeal.

(2) Revokes the Direction to Carry Out Remedial Work dated 16 April 2013 given by the Director-General to the applicant pursuant to s 38 of the Native Vegetation Act 2003.

(3) In substitution therefor, directs the applicant to carry out the remedial work specified in the direction for remedial work attached in the manner specified and within the time specified.

14 In proceedings 10356 of 2013, the Court:

(1) Upholds the appeal.

(2) Revokes the Direction to Carry Out Remedial Work dated 16 April 2013 given by the Director-General to the applicant pursuant to s 38 of the Native Vegetation Act 2003.

(3) In substitution therefor, directs the applicants to carry out the remedial work specified in the direction for remedial work attached in the manner specified and within the time specified.

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Attachment to Order, Grant Turnbull v DG, OEH, LEC No. 10355 of 2013 (PDF)

Attachment to Order, Cory and Donna Turnbull v DG, OEH, LEC No. 10356 of 2013 (PDF)

Decision last updated: 01 August 2014