Land and Environment Court New South Wales

• Medium Neutral Citation: Director-General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118
• Hearing dates: 7 March 2011, 13 May 2011, 23-27 May 2011, 1 June 2011, 17 June 2011 (supplementary written submissions)
• Decision date: 08 July 2011
• Jurisdiction: Class 4
• Before: Preston CJ

Decision

Declaration and injunctions as set out at [348]

• Catchwords: Civil enforcement - proceedings for orders to remedy and restrain breach of statute - picking of plants of endangered ecological communities - owner of private land directed clearing and filling of adjoining land - whether clearing and filling constituted picking of plants - whether plants picked were part of endangered ecological communities - past breach established - threatened or apprehended breach - appropriate orders to remedy and restrain breach - declaration of past breach - orders restraining future breach - orders remedying past breach.; Civil enforcement - proceedings for orders to remedy and restrain breach of statute - damaging and removing vegetation and soil from land reserved or acquired under National Parks and Wildlife Act 1974 ("Parks Act") - owner of private land directed conduct of clearing and filling of adjoining land - conduct damaged and removed; vegetation and soil - whether adjoining land had been acquired under Parks Act at time of conduct - transfer of land not registered until after conduct - whether land acquired before registration of transfer - whether adjoining land reserved under Parks Act as nature reserve at time of conduct - land eligible to be reserved includes land acquired under the Parks Act and lands of the Crown - whether adjoining land was land acquired under the Parks Act at time of reservation - whether adjoining land was lands of the Crown at time of reservation - whether adjoining land was vested in Minister administering Parks Act - alternatively whether adjoining land was lands vested in a public authority - whether Delta Electricity is a public authority - whether public authority granted concurrence to reservation of adjoining land as nature reserve - past breach not established - threatened or apprehended breach - adjoining land since been acquired under Parks Act - appropriate orders to restrain future breach.; Civil enforcement - proceedings for orders to remedy and restrain breach of statute - whether time barred - proceedings for an offence to be commenced within two years after date of offence - civil enforcement proceedings not proceedings for an offence - time bar not applicable.; Declarations and injunctions - civil enforcement proceedings - whether declaration should be made in addition to injunctive orders to remedy and restrain breaches of statute - declaration of breach appropriate to be made in circumstances -appropriate injunctive orders to restrain and remedy breaches - application of polluter pays principle to require polluter to remedy environmental harm caused by breach - whether discretion to decline relief should be exercised.
• Legislation Cited: Annual Reports (Statutory Bodies) Act 1984 s 24A; Civil Procedure Act 2005 s 4 Sch 1; Criminal Procedure Act 1986 s 246; Energy Services Corporations Act 1995 s 4, 5, 6, 11, Pt 1 Sch 1; Environmental Planning and Assessment Act 1979 Pt 5; Independent Commission Against Corruption Act 1988; Land Acquisition (Just Terms Compensation) Act 1991; Land and Environment Court Rules 2007 r 5.3; Land and Environment Court Act 1979 ss s 20(1)(cg), 21(h); National Parks and Wildlife Act 1974 ss 5(1), 30A, 30B, 30C, 118A(2), 145, 146, 148, 156A(1), 176, 189(1), 190(1), 191(1A), 193, Pt 4 Div 1, Pts 4A, 5, 11; Public Finance and Audit Act 1983 Pt 4; Real Property Act 1900 s 41(1); State Owned Corporations Act 1989 ss 4, 20A, 20F, 20H, 20N, 20O, 20P, 20T, 20U, 24A, 28(2), 36(2), 37A(4), Sch 5; Threatened Species Conservation Act 1995 Pt 3 Sch 1, s 4; Uniform Civil Procedure Rules 2005 rr 1.5, 1.6, Pt 6 r 6.2
• Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67; Australian Securities Investment Commission (ASIC) v Atlantic 3 Financial (Aust) Pty Ltd [2006] QSC 132; Barry v Heider (1914) 19 CLR 197; Barton v Orange City Council [2008] NSWLEC 104; Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234; Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407; (1995) 133 ALR 599; Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1980) 144 CLR 577; Corin v Patton [1990] HCA 12; (1990) 169 CLR 540; Council of the City of Sydney v Mae [2009] NSWLEC 84; Ellison v Warringah Shire Council (1985) 55 LGRA 1; Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349; Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2009) 148 LGERA 299; Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559; Great Lakes Council v Lani (2007) 158 LGERA 1; Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6; Lane Cove Council v Sarkozy (1996) 130 LGERA 240; Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127; Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383; Renmark Hotel Inc v Federal Commissioner of Taxation (1949) 79 CLR 10; Strathfield Council v Xu Hong Lin and Wei Jiang t/as Play Electronics (1994) 130 LGERA 344; Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1; Tynan v Meharg & Newcastle City Council (1998) 101 LGERA 255; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335; Watt v Lord [2005] NSWSC 53; Western Australian Turf Club v Commissioner of Taxation of the Commonwealth of Australia (1978) 139 CLR 288; Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508; Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244; Woolworths Ltd v The Warehouse Group (Aust) Pty Ltd [2003] NSWLEC 31; (2003) 123 LGERA 341
• Texts Cited: Keith D A & Scott J "Native vegetation of coastal floodplains - a diagnosis of the major plant communities in New South Wales" (2005) 11 Pacific Conservation Biology Journal 81-104; D J Whalan, The Torrens System in Australia, (1982) LawBook Co, Sydney
• Category: Principal judgment
• Parties: Director-General of the Department of Environment Climate Change and Water (Applicant); Mr Anthony De Lisle Venn (Respondent)
• Representation: Mr D K Jordan, Barrister (Applicant); Ms C Kardell, Solicitor (Respondent); NSW Department of Environment, Climate Change and Water (Applicant); Ms C Kardell, sole practitioner (Respondent)
• File Number(s): 40826 of 2010

Judgment

CIVIL PROCEEDINGS ARE BROUGHT TO REMEDY AND RESTRAIN CLEARING AND FILLING OF LAND

1 Mr Venn owns and occupies land at Colongra Point on the southern shore of Lake Munmorah. The land is formally described as Lot 2 in DP 509889 and is known as Lot 2 Macleay Drive, Halekulani ("Lot 2").

2 Adjoining Lot 2 to the northwest is land formally described as Lot 1 in DP 509889 ("Lot 1"). The Minister administering the National Parks and Wildlife Act 1974 ("the Parks Act") is the registered proprietor of Lot 1. Lot 1 forms part of an area of land known as Colongra Swamp Nature Reserve.

3 The topography of Lot 1 comprises a low-lying flat on its north-eastern portion ("the lake side") and an elevated area ("a low rise") on its south-western portion ("the land side"). Different vegetation communities occur on the low-lying flat and on the elevated area.

4 Between about May 2007 and July 2008, Mr Venn arranged for earth moving contractors to clear parts of both the low-lying flat and the elevated area of Lot 1 and deposit and spread fill over the cleared area ("the Disturbed Area").

5 On 13 October 2010, the Director-General of the then Department of Environment, Climate Change and Water commenced proceedings under s 193 of the Parks Act, by Statement of Claim, seeking orders to remedy and restrain two breaches of the Parks Act. The orders sought were amended at the hearing to include both prohibitory and mandatory injunctions and a declaration that Mr Venn had breached the Parks Act.

6 The two breaches alleged are, first, a breach of s 118A(2) of the Parks Act in that Mr Venn picked plants of two endangered ecological communities on Lot 1, one being the Swamp Oak Floodplain Forest of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions ("the Swamp Oak Floodplain Forest") and the other being the River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions ("the River-Flat Eucalypt Forest") and secondly, a breach of s 156A(1)(b) of the Parks Act in that Mr Venn damaged and/or removed vegetation, soil, sand or similar substance from Lot 1 which was reserved under the Parks Act as Colongra Swamp Nature Reserve or acquired under Part 11 of the Parks Act.

7 Mr Venn defended the proceedings. At the outset, Mr Venn claims the proceedings are time barred. Section 190(1) of the Parks Act provides that proceedings for an offence under the Parks Act may be commenced within but not later than 2 years after the date on which the offence is alleged to be committed or the date on which evidence of the alleged offence first came to the attention of any authorised officer. Mr Venn claims that the two year period, from whichever date is used, would have expired by July 2010. The proceedings were not commenced until 13 October 2010 after the two year period expired. Hence, Mr Venn claims that the proceedings are time barred. The plaintiff's response, of course, is that the proceedings are civil proceedings under s 193 of the Parks Act for an order to remedy or restrain breaches of the Parks Act, not proceedings for an offence under the Parks Act, and hence the limitation period in s 190(1) has no application to such civil proceedings.

8 Mr Venn denies that he breached either s 118A(2) or s 156A(1)(b) of the Parks Act. As to s 118A(2), Mr Venn says that the vegetation on Lot 1 at the time of the alleged breach, was not part of either the Swamp Oak Floodplain Forest or the River-Flat Eucalypt Forest endangered ecological communities and, in any event, he did not pick any plant of such endangered ecological communities because only dead trees or exotic plants were picked, not live native plants.

9 As to s 156A(1)(b), Mr Venn says that, at the time of the alleged breach, Lot 1 had neither been validly reserved under the Parks Act as part of Colongra Swamp Nature Reserve nor been acquired under Part 11 of the Parks Act because the transfer of title to the Minister administering the Parks Act was not registered until 10 February 2009 which was after the alleged breach had occurred. Hence, Mr Venn claims that Lot 1 was not land to which s 156A(1) applied and his actions could not be in breach of s 156A(1).

10 Finally, Mr Venn says that the Court should not, in its discretion, grant the injunctive and declaratory relief sought by the plaintiff.

THE CIVIL PROCEEDINGS ARE NOT TIME BARRED

11 There are two types of proceedings that may be commenced to enforce the Parks Act: criminal proceedings and civil proceedings.

12 In relation to criminal proceedings, s 189(1) of the Parks Act provides:

"(1) Proceedings for an offence under this Act or the regulations may be dealt with:

(a) summarily before the Local Court, or

(b) summarily before the Land and Environment Court."

13 Section 191(1A) of the Parks Act provides:

"(1A) Proceedings for an offence under this Act may be instituted in the Land and Environment Court in its summary jurisdiction only by the following persons:

(a) the Director-General,

(b) an officer of the Service authorised by the Director-General for the purposes of this section."

14 Part 5, r 5.3 of the Land and Environment Court Rules 2007 provides:

"(1) Proceedings for an offence that may be taken before the Court in its summary jurisdiction are to be commenced in the Court by summons claiming an order under section 246 of the Criminal Procedure Act 1986 in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence.

(2) A summons seeking an order pursuant to section 246 (1) of the Criminal Procedure Act 1986 is to be accompanied by the affidavits intended to be relied on as establishing prima facie proof of the offence charged."

15 Section 246(1) and (2) of the Criminal Procedure Act 1986 provide:

"(1) A prosecutor may apply for an order:

(a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or

(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order.

(2) The application must be in accordance with the rules."

16 The Land and Environment Court has jurisdiction in Class 5 to hear and dispose of in a summary manner proceedings under s 189(1) of the Parks Act: s 21(h) of the Land and Environment Court Act 1979 (noting that s 176 of the Parks Act has been renumbered as s 189).

17 In relation to civil proceedings, s 193(1) of the Parks Act provides:

"(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations, whether or not any right of that person has been or may be infringed by or as a consequence of that breach."

18 The Land and Environment Court has jurisdiction in Class 4 to hear and dispose of proceedings under s 193 of the Parks Act: s 20(1)(cg) of the Land and Environment Court Act (noting that s 176A has been renumbered as s 193).

19 Section 4 and Schedule 1 of the Civil Procedure Act 2005 apply that Act to civil proceedings in Class 4 of the Land and Environment Court's jurisdiction. Part 1, r 1.5 and Schedule 1 apply the Uniform Civil Procedure Rules 2005 to proceedings in Class 4 and Part 1, r 1.5(2) and r 1.6 and Schedule 1 do not exclude any provisions of either the Civil Procedure Act or the Uniform Civil Procedure Rules for proceedings in Class 4.

20 Accordingly, proceedings under s 193 of the Parks Act are to be commenced in the Land and Environment Court by filing a statement of claim or by summons: Part 6, r 6.2 of the Uniform Civil Procedure Rules. As I have noted, the plaintiff commenced the current proceedings by filing a Statement of Claim.

21 These two types of proceedings under s 189 and s 193 of the Parks Act are distinct in nature, originating process and the Court's jurisdiction to hear and dispose of the proceedings.

22 The two year limitation period prescribed in s 190(1) of the Parks Act is expressly stated to apply only to "[p]roceedings for an offence under this Act or the regulations". This is a reference only to proceedings under s 189 of the Parks Act, which also expressly applies to "[p]roceedings for an offence under this Act or the regulations". Proceedings under s 193(1) of the Parks Act, in contrast, are not stated to be proceedings for an offence under the Parks Act or the regulations but instead to be "proceedings ... for an order to remedy or restrain a breach of this Act or the regulations".

23 I reject Mr Venn's submission that "breach" and "offence" are synonomous and interchangeable and that proceedings under s 193 are proceedings for an offence. Proceedings under s 193 are civil proceedings to remedy or restrain a breach of a statutory prohibition. They do not attract a criminal conviction or a penalty. They are not criminal proceedings for an offence: Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383 at [15], [16].

24 Hence, the two year limitation period in s 190(1) does not apply to bar the plaintiff's proceedings under s 193 of the Parks Act.

BREACH OF S 118A(2) OF THE PARKS ACT

The elements of the statutory provision breached

25 Section 118A(2) of the Parks Act provides:

"(2) A person must not pick any plant that is of, or is part of, a threatened species, an endangered population or an endangered ecological community."

26 An endangered ecological community is defined in s 5(1) of the Parks Act to mean "an endangered or critically endangered ecological community within the meaning of the Threatened Species Conservation Act 1995. "

27 An endangered ecological community is defined in s 4 of the Threatened Species Conservation Act 1995 to mean "an ecological community specified in Part 3 of Schedule 1" to that Act and an ecological community is "an assemblage of species occupying a particular area."

28 Part 3 of Schedule 1 of the Threatened Species Conservation Act sets out all of the ecological communities which have been listed as endangered. The two endangered ecological communities relevant for this case are:

"River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions (as described in the final determination of the Scientific Committee to list the ecological community)"

"Swamp Oak Floodplain Forest of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions (as described in the final determination of the Scientific Committee to list the ecological community)."

29 I will return later in the judgment to consider the terms of the final determinations of the Scientific Committee to list each of these ecological communities as endangered ecological communities.

30 A "plant", which is part of an endangered ecological community, is not defined directly in the Parks Act but its meaning is described in the context of "pick". Section 5(1) of the Parks Act provides that:

" pick a plant (including a native plant, a protected native plant and a plant that is of, or is part of, a threatened species, population or ecological community) includes gather, pluck, cut, pull up, destroy, poison, take, dig up, crush, trample, remove or injure the plant or any part of the plant."

31 Hence, the proscription in s 118A(2) is against doing any action of the kind described in the definition of "pick" in relation to a native plant that is part of an endangered ecological community.

32 To establish a breach of s 118A(2), therefore, the plaintiff needs to prove, on the civil standard of proof of the balance of probabilities, that Mr Venn, between about May 2007 and July 2008, picked any native plant that is part of either or both of the endangered ecological communities of Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest.

Mr Venn's responsibility for the actions of picking

33 Mr Venn admits that he is responsible for the work of clearing and filling that took place on Lot 1 between about May 2007 and July 2008. Mr Venn says in his second affidavit of 11 May 2011 that "I have done the Work, which is currently the subject of these proceedings, because I consider the foreshore of the Land to be mine and my responsibility" (para 40). Mr Venn explains his intentions for arranging for the work of clearing and filling of Lot 1:

"46. I initially intended only to complete the foreshore works started by the mining company on Lot 2 in 1996, because I had the development consent for DA 726/95 for the work. But when I had the opportunity to put some good soil in there to raise and stabilise the foreshore on the Land I couldn't resist. I realised how much could be achieved.

47. I have not completed the planned Work on the Land. I've done some work on the mid section and had started to extend into the southern section. But even as it stands, I think it is an improvement, because the mid section is still there. Before, it was increasingly looking like the ooze in Pic 46, tab 16, Venn-01.

...

49. I wanted to put in about 400mm of fill, including topsoil, which I estimated would raise the Work area, safely above the Lake Water unless it subsided further ...

50. The trees in the mid section I had cleared were dead and mostly melaleuca, with a few casuarinas. They had no branches, just dead sticks in the air: like those shown in the photo of the area immediately to the north of the Work area, although it wasn't ever as thick as that (tab 17, Venn-01). It was waterlogged, detritus filled ooze and nothing was growing. It was a dead place. And not even lantana grew, because it was so waterlogged and salty." (Venn second affidavit of 11 May 2011).

34 Mr Venn describes how he came to an agreement with Mr Michael Bruce of T J Excavations Pty Limited, initially to do works on Lot 2, in accordance with the development consent that had been granted by Wyong Shire Council in 1995 for foreshore rehabilitation works on Lot 2 after the subsidence in 1992, but then he extended the works to the clearing and filling of Lot 1. Mr Venn says:

"89. I understood from Mick [Bruce] that he could get hold of some good sized rubble and clean fill, as much as I needed and so long as he got exclusive access to the site. He'd manage the work, with his machines on site. He'd line up other contractors to bring in fill from their jobs, charge them for each bin, which would cover his costs. Then he could make sure the fill was good clean fill. He'd get them to get the proper certificates for each load, so he wanted me to get them to contact him if anyone called. He had several projects underway and could start straight away. I agreed.

94. The plan was to bring the trucks in along the front lawn area in front of my home to continue along the existing section of road, which led down to where the old scout camp area used to be. Bring in some road base for a road across my front lawn. Excavate for the road: stockpile the topsoil near the Work area. Install drainage. Widen and take the 'corner' area off the existing (boat rack/access) road, create a turning area to be able to swing the big trucks around to back down the hill to tip the load into the ooze at the bottom of the slope. Then, gradually widen the platform and go out from there. The dead trees in the Work area would be pushed over leaving the roots in the ground. The fill would be applied to the potholes and over the top of the existing surface, up to about 300mm in depth, before topping it up with topsoil. The dead trees would be stacked to one side to be burnt later. A silt fence would be put in to protect the lake and the casuarinas along the shoreline. I would re-plant it with native vegetation.

95. Taking the 'corner' off meant taking two or three apple gums about 100mm diameter and a lot of lantana and bitou bush. I couldn't see a problem with that, because Council doesn't require consent for trees less than 100mm and lantana and bitou were weeds. I knew that dead trees could be removed without Council consent. I worked out that I could safely fill the potholes and raise the land by about 400mm, including topsoil without consent." (Venn second affidavit of 11 May 2011).

35 Mr Venn similarly admitted responsibility for the clearing and filling of Lot 1 in his and his solicitor's letters to the plaintiff. In Mr Venn's letter of 8 January 2008, Mr Venn said:

"I am removing the dead and dying trees and filling the potholes. I intend to stabilise the area as best I can, before replanting the foreshore area with Casuarina glauca and Melaleuca quinquenervia and other appropriate Eucalypts and suitable vegetation to encourage fauna.

I have had to remove quite a lot of lantana and a number of small apple gums (less than 100mm diameter) to allow access, but I see this as an opportunity to replace the lantana with understorey like Acacia longifolia , Banksia integrifolia and others when the work is complete. I have been careful to avoid removing any vegetation that might support local wildlife, in the process." (Venn first affidavit of 16 February 2011, Tab 17, p 7).

36 In the letter of Ms Kardell, Mr Venn's solicitor, of 7 July 2008, the work being done by Mr Venn was described as follows:

"The work in question is being done on the lake foreshore. It is to be done in three stages. The first (central) section of dead and dying Casuarinas, reeds and weeds have been removed and the potholes and subsided areas are being filled. This will be spread with a good topsoil and be planted with Casuarina and young Eucalypts and understorey plants that are native to the area. The temporary roads for access are to be removed, top-dressed and re-planted with native trees and plants." (Venn first affidavit of 16 February 2011, Tab 18, pp 1-2).

37 Mr Venn's solicitor said in her letter of 14 April 2010:

"Mr Venn is concerned to stop the erosion & subsidence of the foreshore into the lake and to that extent he has changed the hydrology and stopped the erosion of the bank thereby returning the land to a condition where it can (again) support the growth of swamp oak and melaleuca." (Venn first affidavit of 16 February 2011, Tab 22, p 3).

38 Mr Bruce confirms that his company, T J Excavations Pty Limited, was engaged by Mr Venn to carry out the clearing and filling work on Lot 1 (Bruce affidavit of 4 March 2009, para 6). Mr Bruce said that, in about April 2007, he went to Mr Venn's house and they walked along the waterfront of Lake Munmorah and to the west to an old rickety fence (this fence is on the northern boundary of Lot 1 with Lot 3 in DP 1029487 in the zone of dead trees). Mr Bruce recounts Mr Venn's directions (he refers to Mr Venn by his first name Tony) as to the work Mr Venn required Mr Bruce to do as follows:

"33. When we were in the area of the Old Rickety Fence, Tony said, 'If you clear all this for me, you can bring as much fill in as you want'.

34. Tony said that he wanted the area from the existing lawn area to the Old Rickety Fence cleared and brought up to the same level and dressed with topsoil.

35. I understood that Tony intended to use the area to be cleared for a Scout camp because Tony said, 'I want it like that grass there, exactly the same up there', referring to the lawn area on the point [Colongra Point which is on Lot 2]. Tony said, 'less trees the better so the kids can set their tents up and it is not going to flood down there so they can use it for their Scout camp.'

36. I understood that Tony was referring to clearing the existing vegetation in the area of the lake foreshore. The type and density of vegetation depicted in the photograph 'MB-C' (Tab 3 of Exhibit MB-01) is similar in species and density to the vegetation that extended from the area of the Old Rickety Fence to the existing lawn area depicted in photograph marked 'MB-A(1)' (Tab 1 of Exhibit MB-01). The only difference is that there were a lot less dead trees towards the east, about 30% dead or dying, 70% alive. I recognised that the trees in the Lower Section included what I know as Swamp Oak and the occasional Paper Bark with Eucalypts further back away from the lake.

38. I can't recall if it was then or later that Tony spoke about the Swamp Oaks in the lower area of the property. Tony said, 'Knock them over, they're weeds. They're not protected.'

39. We discussed how the job was to be undertaken, things like the need to build up the road leading from the gate to the area that was to be cleared and filled. I indicated to Tony that I would need to discuss it with my then business partner, John Rogers ("John").

40. I spoke to John about it and agreed that Tony's proposal sounded alright. It wasn't long, about 2 or 3 weeks after the first visit that I attended the property with John and we spoke with Tony. We discussed the way that the work would be carried out - in stages - building up the road so that the trucks could get down the back with the fill, clear and fill one section then continue on towards the Old Rickety Fence. I tried to negotiate a price for the clearing work with Tony but he would not accept any part of it, saying that we were being able to tip for free. At some stage Tony said, 'You are allowed to bring rubble and that in here too.'

41. John and I agreed to do the work as long as Tony could provide us with a copy of the Development Consent. When we were at Tony's house, he handed me a single page document which I now know relates to works authorised to be carried out on Lot 2 in DP 509889 and is part of Development Consent 726/95 ...

42. When I saw the date of the Development Consent I said: 'It's out of date.' Tony said, 'The DA does not run out until the work's finished.'" (Bruce affidavit of 4 March 2009).

39 Later, when recounting the work that he did on the low-lying flat on the lake foreshore, Mr Bruce said:

"Tony wanted us to clear the vegetation and fill all the way to the lake but I refused to." (Bruce affidavit of 4 March 2009, para 50).

40 When describing how he pushed the trees over with an excavator, Mr Bruce said:

"Tony said he wanted the roots kept in the ground to establish the ground and it would be more to burn anyway." (Bruce affidavit of 4 March 2009, para 51).

41 Mr Bruce noted that:

"64. The area that was to be cleared and filled wasn't marked by Tony but it was clear to me where we were to carry out the work because I received specific instructions from Tony and no one else. I would see and speak to Tony on the property nearly every day we worked there and if he had his way we would have knocked over more trees and cleared right to the water's edge. At no time did I receive any payment for the work that was carried out on the property. The benefit I received was having a place to dump clean fill at little or no cost.

65. At no time did Tony indicate or communicate that we were doing the wrong thing, if anything he was encouraging us to do more." (Bruce affidavit of 4 March 2009, paras 64 and 65).

42 In oral evidence, Mr Bruce said it was "Tony's job"; "Tony was directing what to do" and that Tony "gave advice and direction". Mr Bruce gave two examples of specific directions given by Mr Venn. Mr Bruce said Mr Venn told him to leave 500mm of the stump when the tree was pushed over to hold the ground together before it was covered with fill. Mr Bruce also said that his work on the low-lying flat to strip back the reeds and sedges and push them to the side to make a bund to stop run off was in accordance with what he was told to do by Mr Venn.

The picking of plants

43 The wide definition of "pick" in s 5 of the Parks Act means that a variety of actions undertaken in the clearing and filling of Lot 1 involve the picking of plants. These include the pushing over of trees; snapping trees off but leaving stumps; breaking branches of trees; injuring the bark of trees; digging up reeds, sedges, rushes and other ground cover; digging up, cutting or injuring roots of trees and other vegetation; digging up soil containing parts of plants such as seeds, bulbs, corms, rhizomes, rootstocks, tubers or lignotubers; destroying plants by placing fill on top of plants; and injuring trees by placing fill around the base of the trunks of trees and over their root zone.

44 The evidence that such picking of plants occurred on Lot 1 is extensive. It includes the evidence of Mr Bruce and Mr Murphy who undertook the work of clearing and filling on Lot 1, the direct observational and photographic evidence of persons visiting Lot 1 during the period of work from May 2007 to July 2008 and the expert evidence of Dr Keith. Notwithstanding this extensive and indeed overwhelming evidence of picking of plants, Mr Venn denied he had picked any live plants, although he did concede three small apple gums may have been removed, and instead asserted that only dead trees and weeds were removed. Mr Venn's denial, therefore, necessitates the setting out of the evidence of picking of plants.

The evidence of the persons who cleared and filled Lot 1

45 First, there is the evidence of the two persons who undertook the clearing and filling work, Mr Michael Bruce and Mr Keith Murphy. Mr Bruce's evidence, both in his affidavit of 4 March 2009 and his oral evidence at the hearing, was that he cleared both live and dead vegetation on Lot 1.

46 In Mr Bruce's description of the work undertaken in clearing and filling the land provides an explanation of the various ways in which plants were picked. Mr Bruce said:

"49. One of the first jobs we did on the property, after clearing some Lantana, was build the road out of an existing track. We dug out the topsoil to get to hard ground and I think we may have put terra firma cloth over that before bringing in some compacted material from the Caves Beach job. It took about 200m of fill to build the road. We put the topsoil that was dug out of the existing track down to the area that was later cleared and then spread.

50. Before I started work on the Lower Section, towards the lake foreshore, I erected a silt fence along the shoreline about 4m from the water's edge. Tony wanted us to clear the vegetation and fill all the way to the lake but I refused to. We then started working on clearing the vegetation. The silt fence is depicted in photograph marked 'MB-O' (Tab 15 of Exhibit MB-01) [Earlier Mr Bruce stated that this photograph 'depicts a silt fence and bund wall that was set up along the northern edge of the cleared area, adjacent to the lake foreshore': para 23].

51. The trees were pushed over with the excavator by me and John [John Rogers, Mr Bruce's then business partner]. I would give them a tap with the excavator like we were told and then move on to the next tree and give that a tap, before going back to the first tree and push it over, snapping it off at the base, just above ground level. Tony said he wanted the roots kept in the ground to establish the ground and it would be more to burn anyway. This is depicted in photographs marked 'MB-H' (Tab 8 of Exhibit MB-01) and 'MB-I' (Tab 9 of Exhibit MB-01) [being photographs 018 and 019 taken by Mr McKay on 19 October 2007, although incorrectly labelled 18 Aug].

52. The trees in the Lower Section were about 3-4m apart, predominately Swamp Oak with the occasional Paperbark ... There were about 3 or 4 trees in the Lower Section that were dead and had fallen over and some of the remaining standing trees were dead or dying. We knocked down at least 20 trees in the area that we cleared initially. The largest tree would have been about 250mm in diameter and 20 ft (6m) tall. Of the 'at least 20 trees' we knocked down, about 30% were dead or dying and about 70% were alive.

53. The trees were placed into stacks and were burnt. The fire brigade attended the day the stacks were lit and put out the fires. I understand that people from the nearby caravan park complained about the smoke from the fire so Tony told the personnel from the fire brigade 'okay, we'll stop doing it.' The stacks of trees and fires are depicted in photographs 'MB-F' to 'MB-J' inclusive [photographs 010, 011, 018, 019 and 021 taken by Mr McKay on 19 October 2007, although incorrectly labelled 18 Aug. Earlier in his affidavit, Mr Bruce had identified by reference to these photographs that the area depicted was 'an area of Lot 1 that was cleared of vegetation and had fill placed on it' (para 14), the fire depicted 'was conducted using vegetation cleared from within Lot 1' (para 15) and that the vegetation depicted 'was 'cleared on Lot 1 and burned' (paras 16-18)].

54. Just before the fires we had started clearing the vegetation, which consisted of grass, similar to that depicted in photograph marked 'MB-C' [referring to a photograph taken on 14 May 2007 to the north of Lot 1 showing reed and sedge groundcover] and Lantana. We dug out 300mm of the vegetation and soil and placed the material into two piles, one at the eastern end of the clearing and the remainder as the bund wall next to the silt fence along the foreshore. After we cleared the vegetation we started bringing in the fill, which was certified fill from the job I was also doing at Caves Beach. The fill was spread and the area profiled. We only brought in fill from time to time as it became available. A copy of the Virgin Excavation Natural Material (VENM) report for the material is located at Tab 19 of Exhibit MB-01.

55. Photograph marked 'MB-N' (Tab 14 of Exhibit MB-01) [photograph taken on 7 November 2007] depicts the condition of the cleared area we did to the end of the first stage. I sub-contracted a bloke I know as Keith MURPHY to do some work including spreading fill and profiling. I now know that was at the end of October 2007." (Bruce affidavit of 4 March 2009).

47 Mr Bruce referred to photographs taken on 16 November 2007 by Ms Lawley (photographs 100-3328 and 100-3330) and said they depict "fill" that was deposited onto Lot 1 in DP 509889 and "spread around vegetation" (paras 19 and 20). Mr Bruce also referred to a photograph taken by Mr Gifford on 3 July 2008 (picture 001) which he said depicts "fill that was deposited onto Lot 1 in DP 509889 and a stack of trees which were pushed over as part of the clearing activity" (para 21).

48 Mr Bruce continued his description of the activities, which constitute picking of plants, as follows:

"56. After that date [end of October 2007] we continued to work on the property but only when fill was available. We started clearing the vegetation towards the Rickety Old Fence [between the boundary of Lot 1 and DP 1029487 to the north] and pushed over a number of trees. Again, about 30% were dead or dying and about 70% were alive. Photograph marked 'MB-M' (Tab 13 of Exhibit MB-01) [Mr Gifford's picture 001 taken on 3 July 2008] depicts the trees we knocked over and stacked beyond the first stage and the fill that was brought into the area.

57. Between the start of the job and 3 July 2008, I would say we brought in about 2,000m of fill. We avoided placing fill around trees but some fill was placed around the trees in the southern area of the clearing but only to a depth of about 200mm. The depth of the fill near and around the base of trees is depicted in photographs marked 'MB-K' (Tab 11 of Exhibit MB-01) and 'MB-L' (Tab 12 of Exhibit MB-01) [Ms Lawley's photographs 100-3328 and 100-3330 taken on 16 November 2007].

58. On 3 July 2008 I arranged to take approximately 180 m of fill to Lot 1 in DP 509889. While we were in the process of taking fill to the property I spoke to a person I now know as Steven JAMES, an investigator with the Department of Environment and Climate Change ... By that stage we had taken about 150 m of fill to the property. I was instructed by Steven JAMES to stop placing fill onto the property and cancelled the two trucks that were on the way there.

59. Later that day I spoke with Tony about being told to stop work. Tony said that if I stopped work he would take legal action against me. He also said that the people from the National Parks and Wildlife Service were not allowed on his property.

60. It was around that time that Tony said, 'it looks like a minefield'. I said, 'I can't come there because the EPA come in.' Tony said, 'well, come in and spread it' referring to the piles of fill.

61. Tony also wanted the stack of trees that were present in the clearing, depicted in photograph marked 'MB-M' [Mr Gifford's picture 001 taken on 3 July 2008] burnt.

63. The only work I did on Lot 1 in DP 509889 after 3 July 2008 was to spread the fill that was on site and burn the trees in the stack, as well as three loads of trees I brought in from another job. Tony wanted me to continue with the clearing work but I refused to." (Bruce affidavit of 4 March 2009).

49 In his oral evidence, Mr Bruce supplemented his description of the clearing and filling undertaken on Lot 1. Mr Bruce said it took about three to four days just to clear the trees. He cleared using an excavator. The excavator would nudge the tree then snap it over. He left about 500 mm of stump. He confirmed that of the trees which were knocked over, 30 per cent were dead or dying and 70 per cent were alive.

50 On the low-lying flat, Mr Bruce said he stripped the topsoil and pushed it to the side to make a bund wall. Sedges were in the ground in the topsoil. Mr Bruce said it was necessary to remove the sedges as you could not put fill on grass because the grass would rot. You use the topsoil and sedges as a bund to stop runoff from the cleared area into the lake.

51 Mr Bruce was again shown various photographs. A photograph taken by Ms Lawley on 16 November 2007 (photograph 100-3326) showed a pile of soil at the north-western end of the cleared area with a pile of timber behind. Mr Bruce said that was a pile of fill brought into the site and not topsoil stripped from Lot 1 or Lot 2. A photograph taken by Mr McKay on 19 October 2007 (photograph 022) depicted a pile of timber in the north-western end of the clearing. Mr Bruce said the timber appeared to be pushed over by the excavator. This was the same pile of timber behind the pile of fill depicted in Ms Lawley's photograph of 16 November 2007.

52 In relation to the bund wall, Mr Bruce was shown one of Ms Lawley's photographs taken on 16 November 2007 (photograph 100-3337) showing the sedges in the topsoil pushed to the side to form a bund against the silt fence on the lake-side and a drainage ditch on the land-side of the bund. Mr Bruce's answers as to how he made the bund were in response to this photograph.

53 Another photograph (photograph 100-3338) showed trees at the south-eastern end of the clearing towards the boundary of Lot 1 with Lot 2. Mr Bruce said one tree had already come down in the storm [this was a large Melaleuca quinquenervia ] but the other tree rubble pushed over was done by him or his workers. In the foreground of the photograph there were sedges pushed aside in the bund. Mr Bruce denied in cross-examination by Mr Venn's solicitor that he had pushed Lantana down to the silt fence to make the bund.

54 Mr Murphy was subcontracted by Mr Bruce to spread and profile the fill from 31 October 2007. Mr Murphy described his instructions:

"I was to push the fill from the southern end towards the lake foreshore and spread it around. I was also instructed to cut out a hump that existed halfway down the cleared area creating a gradual slope from the southern edge to the foreshore. I have marked in red on the aerial photograph marked 'KM-B' the general area I was in when I received my instructions. I have also marked in blue on the aerial photograph marked 'KM-B' the general instructions I received." (Murphy affidavit of 13 March 2009, para 12).

55 On the aerial photograph marked "KM-B", Mr Murphy wrote the words "cut in here" on the elevated area and "fill" on the slope running down to the low-lying flat and wrote "angle" on the slope between the elevated area and the low-lying flat.

56 Mr Murphy said he did the work as instructed on 31 October and 1 November 2007. Mr Murphy also said:

"At one stage Mick [Bruce] asked me to clean out the vegetation under the canopy of trees on the eastern side of the clearing. I have marked in blue on the aerial photograph marked 'KM-B' the area that I was asked to clean out by Mick. I'm not sure what the type of vegetation was but it had some vines and what I would describe as rubbish vegetation. It only took me half an hour to finish that off, pushing the vegetation to around the base of a pile on the foreshore side of the area I cleaned up. I have marked an arrow in blue on the aerial photograph marked 'KM-B' where the pile was. I believe the pile was just grass and dirt from the already cleared area." (Murphy affidavit of 13 March 2009, para 18).

57 The area Mr Murphy marked with a blue arrow and which he said he cleared is on the eastern edge of the cleared area on the slope between the elevated area and the low-lying flat.

58 Mr Murphy looked at photographs taken on 7 November 2007 by Mr Eaton, (photographs PICT 0019 to PICT 0025). Mr Murphy said "the photographs accurately depict the work that I carried out on the Property. I am able to identify the marks left by the bucket blade of the machine I was operating. I can also recognise the marks left by the 'back blading' that I did, referring to the method used to create the grade downhill towards the foreshore." (Murphy affidavit of 13 March 2009, para 22).

59 One of the photographs taken on 7 November 2007 by Mr Eaton (photograph PICT 0021) depicts a pile of vegetation on the low-lying flat at the base of the eastern edge of the slope at the location to which Mr Murphy said he pushed the vegetation he cleared on 1 November 2007. This is a pile of vegetation Mr Venn asserted was vegetation that had been transported from elsewhere.

The observational evidence of National Parks officers

60 Next, there is the evidence of the observations and photographs of clearing and filling by a variety of persons from the National Parks & Wildlife Service ("NPWS") or Department of Environment, Climate Change and Water ("DECCW"), Wyong Shire Council, and the Friends of Colongra who attended Lot 1 at various times during May 2007 to July 2008.

61 There were four witnesses from NPWS or DECCW. Mr John Eaton, a Bush Regeneration and Volunteer Co-ordinator for NPWS, attended Lot 1 on 5 July 2007 with other persons including Mr Gifford and Mr Dalton. Mr Eaton said he approached the cleared area from the western side, in an area of subsidence between the swamp and lake foreshore. He said:

"I observed that area approximately half a hectare in size appeared to have been cleared of vegetation down to mineral earth. There were at least two piles of what looked like vegetation and soil in the Cleared Area, one at the western edge." (Eaton affidavit of 23 July 2010, para 11).

62 Mr Eaton also said "[t]here were a large number of tyre tracks apparent in the Cleared Area as well as what appeared to be scrape marks on the earth and some trees from machinery" (para 13).

63 Mr Eaton returned to Lot 1 many times thereafter. On 7 August 2007, Mr Eaton observed fill in piles in the cleared area but none appeared to have been spread (para 14).

64 On 7 November 2007, Mr Eaton took photographs and Mr Eaton observed that more fill had been brought into the area, piles of fill still existed but fill had also been spread (para 18). A large amount of the cleared area had been filled and profiled (para 19). Mr Eaton's photographs of the filled and profiled areas were the photographs shown to Mr Murphy. Mr Eaton observed an earthen wall in the nature of a bund between the northern end of the clearing and the lakefront. The earthen wall appeared to be recently formed (para 20).

65 On 16 November 2007, Mr Eaton attended Lot 1 with Mr Ball and Ms Lawley, both from Wyong Shire Council and took photographs (para 21). Mr Eaton observed four more piles of fill had been placed in the south-western corner of the clearing since his visit on 7 November 2007 (para 23) and that more fill had been placed and spread in the south and south-western areas of the clearing, including around the base of trees (para 24). Mr Eaton "observed that standing trees at the very eastern end of the clearing (present on 5 July 2007 and adjacent to a lawn area) had been pushed over as depicted in photograph PICT 0066" (para 25). This location is on the low-lying flat towards the boundary of Lot 1 with Lot 2. The photograph shows the silt fence and earthen bund.

66 On 22 November 2007, Mr Eaton attended Lot 1 with Ms Hines and observed and took photographs of more piles of fill that had been placed in the southern cleared area where he had observed fill on 16 November 2007 and in the south-eastern corner of the clearing (paras 27 and 28).

67 On 3 July 2008, Mr Eaton attended Lot 1 with volunteers from the Friends of Colongra, as well as Mr Gifford, Ms Conyers and Mr James. He observed and took photographs of heavy machinery in the cleared area depositing fill on to the ground, piles of soil in the cleared area and "a number of apparently live trees had been placed into a stack" (para 30).

68 Mr Eaton attended Lot 1 on 15 and 22 July 2008 and took further photographs.

69 Mr Gifford, a Ranger with NPWS, attended Lot 1 with Mr Eaton on 5 July 2007. Mr Gifford states:

"I observed that area approximately 200 m long and 100 m wide, immediately adjacent to the lakefront, appeared to have been cleared of the majority of vegetation piled into stacks within the Cleared Area. Trees, including live Casuarina glauca , appeared to have been pushed over by mechanical means and were amongst the stacked material. I observed tyre marks and other signs of machinery, including marks on prone, tree trunks and scrape marks, present in the area." (Gifford affidavit of 12 March 2009, para 4).

70 Mr Gifford also attended Lot 1 with others, including Mr Eaton and Ms Conyers, on 3 July 2008. He observed and took photographs of: heavy machinery in the cleared area; fill present in piles on the ground; fill had been spread in the cleared area, raising the profile of the cleared area; and "live trees, including Casuarina glauca had been pushed over by mechanical means and placed into stacks." (Gifford affidavit of 12 March 2009, paras 20-22).

71 On 15 July 2008, Mr Gifford attended Lot 1 with Mr Eaton and "observed that fill that had [been] deposited in the Cleared Area was spread around the base of apparently mature Eucalypt trees" (para 26). Mr Gifford took a close up photograph of the "base of a Casuarina glauca tree which was located in the north-eastern corner of the Cleared Area" (PICT 024) (para 27). The picture shows the snapped base of the tree. Mr Gifford photographed what he described as "the northern side of the Cleared Area" (but the photograph depicts the low-lying flat towards the boundary of Lot 1 and Lot 2) showing tyre marks and vegetation laying prone on the ground (para 29).

72 Ms Bronwyn Conyers, the Area Manager for the Lakes Area of the Central Coast Hunter Range Region of NPWS, attended Lot 1 with Mr John Eaton and others on 3 July 2008 and took photographs. Ms Conyers states:

"I observed that there was heavy machinery in the Cleared Area that appeared to be depositing fill onto the ground. I observed that piles of soil had been placed into the Cleared Area and a number of live trees had been placed into a stack." (Conyers affidavit of 12 March 2009, para 6).

73 Mr Steven James, an officer with the Specialist Investigations Unit of DECCW, attended on 3 July 2008 with others and recounted:

"I observed that there were a number of trucks including a truck (registration YEC 234) and a truck with trailer (registration 173 QLG) which had an excavator on the back of the trailer within the Cleared Area. I observed that the machinery in the Cleared Area appeared to be depositing fill onto the ground. I observed piles of soil in the centre of the Cleared Area and a stack of trees in the western area of the Cleared Area." (James affidavit of 22 June 2010, para 14).

The observational evidence of the Council officers

74 Four officers of Wyong Shire Council attended Lot 1 during 2007 and 2008 and observed the clearing and filling.

75 Mr Paul McKay, a Ranger with Wyong Shire Council, attended Lot 1 on 19 October 2007 in response to a reported illegal fire. This was the occasion when the Charmhaven Rural Fire Service attended the burning of stacks of trees and vegetation on Lot 1. Mr McKay took 13 photographs (the photographs have been reproduced in evidence with the incorrect date of "18 Aug" instead of 19 October 2007). Mr McKay's photographs were shown to Mr Bruce.

76 Mr McKay says that he "saw fire brigade personnel were placing water onto large piles of 'green waste'". (McKay affidavit of 5 March 2009, para 6). Mr McKay marked on an aerial photograph (PM-A) the location of the three piles of green waste that were being burnt and numbered them 1 to 3. Pile 1 is on the elevated area near the truck turning circle where the track from Mr Venn's front entrance on Lot 2 emerges into the cleared area. Pile 2 is further along in the cleared area but still on the elevated area. Pile 3 was at the base of the slope on the low-lying flat in the middle of the cleared area.

77 Mr McKay said:

"The 'green waste' was made up of what appeared to be recently felled live trees. I am not sure of the species of the trees apart from being able to identify some Casuarinas. The area in the vicinity of the piles of 'green waste' appeared to have been cleared of vegetation and I could see tracks from machinery or large trucks throughout the area. There were apparently live trees laying prone on the ground which appeared to have been knocked over and were still adjacent to their respective stumps. The trees laying prone on the ground appeared to be healthy and in good condition, some with machinery track marks leading up to them." (McKay affidavit of 5 March 2009, para 8).

78 By reference to his photographs, Mr McKay identified the various piles that were burning; the clearing on the low-lying flat showing fallen trees pushed together; cleared ground showing broken plant parts and roots; three Casuarina trees between piles 1 and 3 snapped off and lying on the ground; a tree stump in the ground; pile 3 containing apparently live vegetation; and a pile of apparently live vegetation at the eastern edge of the clearing (McKay affidavit of 5 March 2009, para 11).

79 Mr Brett Ball, an Environmental Health Officer with Wyong Shire Council, attended Lot 1 with Ms Jessica Noble on 1 November 2007. Mr Ball said he and Ms Noble met Mr Venn and walked to the cleared area on Lot 1. Mr Ball said:

"While at the property, I observed that a bobcat was operating in the area of the clearing, moving fill around. There were piles of fill in the area of the clearing as well as trees that appeared to have been pushed over and stacked." (Ball affidavit of 5 March 2009, para 22).

80 Mr Ball and Ms Noble spoke to the bobcat operator, Mr Keith Murphy (para 22).

81 Mr Ball attended Lot 1 again on 16 November 2007 with Ms Lawley from Wyong Council and Mr Eaton. Mr Ball observed that: "more piles of fill had been placed in the southwestern corner of the cleared area"; "fill had been placed and spread around the base of standing trees"; "stacks of apparently live trees in the western end of the cleared area" and "stacks of apparently live trees in the eastern end of the cleared area" (Ball affidavit of 5 March 2009, paras 29-32).

82 Ms Jessica Noble, formerly an Environmental Health Officer with Wyong Shire Council, attended Lot 1 with Mr Ball on 1 November 2007. Ms Noble and Mr Ball walked to the cleared area with Mr Venn. Ms Noble said:

"I observed that a bobcat was operating in the area of the clearing, moving fill around. There were piles of fill in the area of the clearing as well as apparently live trees that appear to have been pushed over and stacked." (Noble affidavit of 5 March 2009, para 17)."

83 Ms Noble had a conversation with the bobcat operator, Mr Keith Murphy (para 17).

84 Ms Danielle Lawley, formerly a Development Planner (Ecologist) with Wyong Shire Council, attended Lot 1 with Mr Ball and Mr Eaton on 16 November 2007. Ms Lawley took photographs but the date stamp was incorrectly set and recorded as "02/01/2004" instead of "16/11/2007" (Lawley affidavit of 5 March 2009, para 7). Ms Lawley's photographs were shown to Mr Bruce.

85 By reference to her photographs, Ms Lawley describes the area of clearing, the fill placed around the base of trees at various locations, apparently live trees in a stack, other stacks of trees and apparent damage to the trunk of an apparently live tree that was part of a stack in the clearing (Lawley affidavit of 5 March 2009, paras 9-20).

The observational evidence of a bush regenerator

86 Mr John Dalton, a volunteer Bush Regenerator with the Friends of Colongra, had visited Lot 1 and surrounding areas many times since 2000 with the last time before the clearing and filling commenced being in October 2006. Mr Dalton attended Lot 1 on two occasions during the period of clearing and filling. On 5 July 2007, Mr Dalton attended with Mr Eaton and Mr Gifford and others. Mr Dalton "observed that the trees previously in the cleared area had been removed and placed in stacks; the understorey and ground cover had been removed and the ground was just bare earth" (Dalton affidavit of 12 March 2009, para 16). On 7 November 2007, Mr Dalton attended Lot 1 again with Mr Eaton and Mr Gifford and others. Mr Dalton said:

"We attended the cleared area and saw that fill had been brought in and placed in piles. I saw that the fill was clearly foreign to the area because it was in piles, it had clay and rocks in it and it was a different colour and texture to the pre-existing soil. The cleared area had been capped with fill and profiled on two levels, an upper level away from the lake and a lower level, towards the lower section near the lake foreshore. The stacks of trees were still present and there was fresh grass and weeds growing out of some of the piles of dirt." (Dalton affidavit of 12 March 2009, para 17).

87 Mr Dalton's oral evidence was corroborative of his affidavit evidence.

The observational and expert evidence of Dr Keith

88 Dr Keith, a Senior Principal Research Scientist with the DECCW, gave observational and opinion evidence that native plants were picked in the period of May 2007 to July 2008.

89 First, Dr Keith says that during his site inspection on 30 June 2009, he observed in the Disturbed Area dead remains of stems and roots of Casuarina glauca and Melaleuca quinquenervia . His photograph P630021 showed these dead remains in the Disturbed Area of Lot 1. Dr Keith stated:

"During my site inspection, I observed breakages of the stems and roots and scars on the wood of the dead remains which, in my opinion, were consistent with the use of heavy machinery to clear native vegetation. The state of decay of the bark and wood of specimens that I observed within the Disturbed Area during my inspection was consistent with timing of death during the time of the Relevant Conduct advised in the Letter of Instruction [ie between 4 May 2007 and 3 July 2008] ... Reference to photographs (labelled 100-3334 and 100-3335 in Attachment C) taken within the Disturbed Area on 16 November 2007 shows dead remains of Casuarina glauca and Melaleuca quinquenervia in a stockpile of vegetation. Retention of foliage on the branches of these remains indicates that tree death occurred within weeks of the date of these photographs ie. during the time of the Relevant Conduct advised in the letter of instruction ... Photograph 100-3326 (Attachment C) taken on 18 November 2007 shows a stand of Casuarina glauca adjacent to the northern boundary of the Disturbed Area. A tree in the centre of this photograph has dead foliage and damage to bark on its trunk consistent with use of heavy machinery. The accumulation of landfill around the base of the tree is also consistent with use of heavy machinery. This tree was dead at the time of my field inspection (30 June 2009). In my opinion, these field observations and photographs indicate a high likelihood that the Relevant Conduct caused these Identified Indigenous Species to be picked" (Keith's expert report, pp 12 and 13).

90 Secondly, Dr Keith expresses the opinion that there was clearing of sedges, rushes and reeds on the low-lying flat in the Disturbed Area of Lot 1. Dr Keith states:

"[E]xamination of a photograph labelled 100-3337 in Attachment C and taken during 16 November 2007 shows recent earthworks on the low-lying flat within the Disturbed Area. Dead remains of Identified Indigenous Species are visible on this photograph within a row of stockpile vegetation and soil running parallel to a mesh erosion fence. The state of decay of plant material within the stockpile and the colouration of bare soil and the lack of regrowth on the land-side of the stockpile suggest that the stockpile was constructed contemporaneously with the earthworks. Together with the spatial juxtaposition of the stockpile and the area of earthworks, this indicates that death of the Identified Indigenous Species visible within the stockpile is likely to have been a result of the earthworks within the Disturbed Area. Close examination of the stockpile shown in the foreground of photograph 100-3337 indicates that the dead remains include robust sedges and rushes consistent with Juncus kraussii subsp australiensis and/or Baumea juncea . Living specimens of one or both of these species are visible in the photograph 100-3337 adjacent to the stockpile on the lake-side of the erosion fence. During my field inspection, I confirm the existence of both Juncus kraussii subsp australiensis and Baumea juncea at this location on the lake-side of the erosion fence. Both species are listed as characteristic species of Swamp Oak Floodplain Forest in Paragraph 1 of the Final Determination. In my opinion, these field observations and photographs indicate a high likelihood that the Relevant Conduct caused these Identified Indigenous Species to be picked". (Dr Keith's expert report, pp 13-14).

91 Thirdly, Dr Keith expresses the opinion that Casuarina glauca trees growing on the low-lying flat towards the boundary of Lot 1 with Lot 2 were removed as part of the clearing. Dr Keith states:

"[C]omparison of a pair of photographs (labelled 5 and 6 in Attachment C) taken before and after the Relevant Conduct shows that specimens of Identified Indigenous Species have disappeared from the Disturbed Area on Lot 1 during the intervening period. The trunks of two standing Casuarina glauca trees are visible in the left middle ground of Photograph 5 taken on 4 May 2007. I have labelled these 'reference trees' on Photograph 5 in Attachment C. The view between these 'reference trees' to the lake is obstructed by a number of (at least 12) standing specimens of Casuarina glauca in the background of the photograph. Casuarina glauca is identifiable on the photograph by its distinctive fine branchlets and foliage and compact grey bark. The trunks of the same two reference trees are visible in the left middle ground of Photograph 6, which was taken on 2 February 2009, after the Relevant Conduct. By comparison with photograph 5, very few (no more than 3-4) specimens of Casuarina glauca are visible between the reference trees and the view to the lake is relatively unobstructed. In my opinion, this, together with evidence of dead remains of Casuarina glauca rooted in the area of the missing trees (photograph labelled P6300021), indicates that trees of Casuarina glauca were picked during the Relevant Conduct". (Dr Keith's expert report, p 14).

92 Fourthly, Dr Keith expresses the opinion that Swamp Oak Floodplain Forest vegetation occurred on the part of the low-lying flat which forms a narrow strip from the cleared area towards the boundary of Lot 1 with Lot 2 but that vegetation in this narrow strip was removed in the clearing. Dr Keith states:

"The plan in Attachment A shows a narrow strip of the Disturbed Area at its southern extremity. A photograph labelled 100-3357 in Attachment C taken on 16 November 2007 shows recent earthworks within this narrow strip on the right-hand side of the photograph and labelled 'narrow strip'. Typical examples of Swamp Oak Floodplain Forest can be seen on photograph 100-3357 both lake-side and land-side of this strip. During my field inspection, I confirmed the existence of Swamp Oak Floodplain Forest at these locations on either side of the narrow strip. Given the similarity of vegetation, soils, hydrology and landform observed on either side of the narrow strip during my field inspection, I consider that it is highly unlikely that any ecological community other than Swamp Oak Floodplain Forest occurred on this narrow strip prior to the earthworks taking place. This interpretation is corroborated by the existence of dead remains of Casuarina glauca and Melaleuca quinquenervia rooted within this narrow strip and shown in Attachment C (photograph labelled P6300021) and dead remains of Juncus kraussii subsp australiensis and/or Baumea juncea within a linear stockpile, as described above, on the lake-side of the narrow strip visible in photographs 100-3357 and 100-3337". (Dr Keith's expert report, pp 14-15).

93 Fifthly, Dr Keith refers to aerial photography as well as photographs on the ground to conclude that Casuarina glauca trees were destroyed within the Disturbed Area by 16 November 2007. Dr Keith states:

"[A]erial photography (in Attachment B) taken on 18 December 2006 prior to the Relevant Conduct shows Identified Indigenous Species on the Disturbed Area, including a number that are identifiable as Casuarina glauca . Careful examination of high-resolution aerial photography allows the canopies allows the trees of Casuarina glauca to be distinguished from those of other species. Casuarina glauca is identified in Paragraph 4 of the Final Determination as the dominant species of Swamp Oak Floodplain Forest. The distinctive tone and texture of leaf canopies of Casuarina on aerial photography are related to the 'needle-like' branchlets on which leaves are reduced to tiny teeth encircling the stem of the branchlet. This contrasts with the tone and texture of canopies of other tree species that have well-developed leaves, such as species of Eucalyptus and Melaleuca . By examining the photograph marked 100-3357 in Attachment C, I identified numerous specimens of Casuarina glauca within and near the Disturbed Area. During my field inspection, I verified the identity of specimens that were still standing adjacent to the Disturbed Area on its lake-side (visible in photograph 100-3337), adjacent to and west of the narrow strip referred to above (and visible in photograph 100-3357) and adjacent to and north of the Disturbed Area (and visible in photograph 100-3326). Examination of photograph 100-3357 taken on 16 November 2007 (see Attachment C) shows an absence of trees and recent landfill and earthworks in foreground and background areas corresponding to locations where trees were present on the aerial photograph taken on 18 December 2006. Reference to photograph 010 (Attachment C) taken on 18 August 2007 [sic, in fact 19 October 2007 in a photograph taken by Mr McKay] shows that a number of these trees had been destroyed before that date. This indicates that trees of Casuarina glauca were destroyed within the Disturbed Area between 18 December 2006 and 18 August 2007 [sic, 19 October 2007], consistent with the assumed date of the relevant conduct ... I also verified that a number of Casuarina glauca trees that were visible within the Disturbed Area on the aerial photograph in Attachment B were no longer in existence at the time of my field inspection. In my opinion, these field observations and photographs indicate a high likelihood that the Relevant Conduct caused specimens of Casuarina glauca to be picked (Dr Keith's expert report, p 15).

94 Sixthly, Dr Keith expressed the opinion that the earthworks and filling within the Disturbed Area had the effect of destroying native ground vegetation. Dr Keith states:

"[F]urther examination of the aerial photograph in Attachment B shows that open areas are interspersed amongst trees of Casuarina glauca . The tone and texture of these open areas on the aerial photograph are consistent with native ground vegetation including dense growth of reedland species, Juncus kraussii subsp australiensis and Baumea juncea . The tone and texture of this native ground vegetation is distinct from that of lawn, which is visible on the same aerial photograph to the south of the Disturbed Area on Lot 2 and the southern extremity of Lot 1 (see plan in Attachment A). An area of native ground vegetation (shown in Photograph marked 100-3357 in Attachment C) remained intact at the time of my field inspection. Ground-truthing of this site verified the presence of Baumea juncia and numerous other smaller Identified Indigenous Species listed as present within remnant vegetation in Attachment D1. The presence of these ground-vegetation species and the existence of mosaics of reedland (open areas) with forest and woodland are both characteristics of Swamp Oak Floodplain Forest described in Paragraphs 1 and 5 of the Final Determination. Several open areas of ground vegetation that were visible on the aerial photograph were no longer in existence at the time of my field inspection. Reference to photograph 010 (in Attachment C) taken on 18 August 2007 [sic, 19 October 2007] shows that an area of ground vegetation had been destroyed before that date. Photograph 100-3330 (Attachment C) taken on 18 November 2007 shows burial of native ground vegetation beneath landfill to a depth of up to one metre. In addition to smothering above-ground components of Identified Indigenous Species in the ground vegetation, burial beneath such a depth of landfill is virtually certain to cause death of the below ground components of Identified Indigenous Species. These include soil seed banks and dormant structures such as bulbs, corms, rhizomes, rootstocks or lignotubers, which are referred to in Paragraph 2 of the Final Determination. Emergence of shoots from buried seeds or such vegetative structures typically occurs from depths of less than 5 cm below the soil surface, ie. much shallower than the depth of landfill that was spread across parts of the Disturbed Area during the Relevant Conduct. Consequently, Identified Indigenous Species are unlikely to emerge from beneath the landfill. The lack of Identified Indigenous Species that I observed growing on the landfill surface during my inspection (see Attachment D1) is consistent with this expectation. In my opinion, these field observations and photographs indicate a high likelihood that the Relevant Conduct caused Identified Indigenous Species in the ground vegetation of Swamp Oak Floodplain Forest to be picked." (Dr Keith's expert report, pp 16-17).

95 Dr Keith's opinions were supplemented in his oral evidence at the hearing. Dr Keith restated, by reference to the aerial photograph taken on 18 December 2006 of the Disturbed Area, the difference between the pale tone and fine texture of the maintained lawn on Lot 2 and part of Lot 1 and the darker tone and coarse texture of the ground cover areas visible between the trees on Lot 1, particularly in the low-lying flat. Dr Keith also contrasted the brighter green tone of the cleared areas between trees on the elevated area, which Dr Keith stated is Lantana camara , with the darker tone and different texture of the ground cover between the trees on the low-lying flat, indicating the absence of Lantana camara .

96 Dr Keith referred to photograph 100-3357 taken on 16 November 2007 on the low-lying flat which showed remnant ground vegetation of native sedges and rushes. Dr Keith said that this was in the area that he had referred to in the aerial photograph. His inference is that this type of native vegetation ground cover, of native sedges and rushes, would have extended along much of the area previously shown in the aerial photograph taken on 18 December 2006.

97 Dr Keith also referred to a photograph taken by Mr McKay on 19 October 2007 (photograph 022) which shows ground cover remaining on the low-lying flat. Dr Keith says this had a grey/green tone which is indicative of native ground cover. He also noted that the soil was dark in colouration which is indicative of in situ native soils.

98 Dr Keith was again taken to photograph 100-3337 taken on 16 November 2007 which he had referred to in his affidavit. Dr Keith said that native sedges and rushes remain in the stockpile bund. Dr Keith referred to photograph 100-3357 which was taken on 16 November 2007 which showed sedges on the right hand or lake-side of the stockpile bund as well as on the left hand side in the island or patch of remnant vegetation. Dr Keith drew the inference that there was similar vegetation on either side and it was likely to have extended between the remnant patch and the silt fence. Dr Keith referred to photograph 015 taken by Mr McKay on 19 October 2007 which showed the same area on the low-lying flat after it had been disturbed. Dr Keith noted the colour and tone of the native in situ soils. At this point of time, the area had not been greatly disturbed on the ground. It was therefore likely that there was similar vegetation of sedges and rushes extending across the low-lying flat.

99 Dr Keith noted that subsequently fill was placed over the top of the low-lying flat. Dr Keith confirmed his opinion expressed in his affidavit that the placing of fill over the area where sedges and rushes previously grew would smother and prevent reshooting of the plants. Dr Keith said the vegetation would shoot from a depth of up to 5cm of fill but for larger depths it is increasingly less likely. Dr Keith said that his site inspection in 2009 confirmed what he would have expected would have been the result having regard to the depth and fill placed over the site. Dr Keith said that the site was primarily covered by introduced or exotic species with very few native species.

100 Dr Keith also referred to photographs taken by Mr Eaton (photograph PICT 0020) on 7 November 2007. Dr Keith said that the photograph depicted fill around rough barked apple trees, Angophora floribunda . Dr Keith expressed the opinion that if the fill came up to 1 m deep, it would reduce the health of the trees and reduce their probability of survival. Dr Keith explained that fill changes the conditions around the trunk and allows penetration by fungal pathogens and termites. Signs in the canopy would be a progressive defoliation and appearance of dead branches. There also can be decortication or loss of tissue. Dr Keith also said that placing of fill compacts the soil, reduces air spaces and reduces the oxygen available to roots.

Adoption of evidence of picking of plants

101 I accept and adopt the evidence of each of these witnesses that plants were picked in the ways described between May 2007 and July 2008. Mr Venn did not require any of the witnesses for cross-examination. Nevertheless, three of the witnesses, Mr Eaton, Mr Dalton and Dr Keith did attend and give further oral evidence at the hearing and Mr Venn's solicitor asked some questions of each of these persons. Nevertheless, their essential evidence that there was picking of plants was not challenged and the witnesses did not withdraw or modify their statements of facts or inferences that plants were picked in the ways they described.

Rejection of Mr Venn's denials of picking of plants

102 Notwithstanding all of this evidence, Mr Venn continued to maintain that there was no picking of live native plants except for "two or three apple gums about 100mm diameter." (Venn second affidavit of 11 May 2011, para 95). Mr Venn's position was that any other vegetation picked was either dead trees or exotic weeds such as Lantana and Bitou Bush. Mr Venn said:

"The trees in the mid section I had cleared were dead and mostly melaleuca with a few casuarinas. They had no branches, just dead sticks in the air ... It was a waterlogged, detritus filled ooze and nothing was growing. It was a dead place. And not even lantana grew, because it was so waterlogged and salty". (Venn second affidavit, para 50 and see also para 84).

and

"The reeds that had sprung up after the subsidence started to die as the water rose and the land was eroded away." (Venn second affidavit, para 85).

103 Mr Venn said that Mr Bruce started work about 8 May 2007 and:

"took about a day and a half to two to make the road, widen the access road, clear a turning area, push over and stack the dead trees, lantana and bitou bush and dump some fill at the bottom of the ooze". (Venn second affidavit, para 100).

104 However, Mr Venn did concede that while taking the corner off the existing road and creating a turning circle "two or three apple gums about 100mm diameter were removed". (Venn second affidavit, para 95).

105 Mr Venn's answer to the photographic and observational evidence of apparently live trees in the stacks of vegetation on the site, including those stacks being burnt, was that the trees were transported to Lot 1 either from Lot 2 or from off site. Mr Venn said a severe storm in June 2007 brought a number of trees down, including at the entrance gates and on the front garden lawn area of Lot 2 (paras 103 and 104 and see also paras 126, 128, 130 and 134 of Venn second affidavit). Mr Venn said that Mr Bruce "helped get the timber cut up, moved and stockpiled down on the Work Area on Lot 1 so they could be burnt later on" (para 105 and see also paras 127, 130, 134, 137 of Venn second affidavit). Mr Venn said that Mr Bruce also gathered up dead trees that had fallen on the Lot 2 shoreline at the same time (para 105 and see also para 134, 135-137 of Venn second affidavit).

106 Mr Venn also claimed that Mr Bruce brought in three loads of vegetative waste from other jobs (para 121 of Venn second affidavit) and the remaining timber and added vegetative waste was burnt on 8 December 2008 (para 123 and 138 of Venn second affidavit).

107 In summary, Mr Venn said he did not pick plants in the period 4 May 2007 to 3 July 2008 or otherwise (para 124 of Venn second affidavit). He said:

"I have removed dead trees in May 2007, together with some weeds. I moved other dead trees from along the Lot 2 shoreline and one from on the land to the stack to be burnt. I have had the trees that have come down after storms gathered up and put on the stack for burning" (para 125 of Venn second affidavit).

108 I do not accept Mr Venn's evidence in relation to picking of plants. First, Mr Venn did not undertake the clearing and filling on Lot 1, rather Mr Bruce and Mr Murphy did. I prefer their evidence as to what they did in clearing and filling (summarised earlier in the judgment) over Mr Venn's belief as to what they did. I also accept the evidence of Mr Bruce and Mr Murphy in relation to the vegetation placed on the stacks to that of Mr Venn. Their evidence was that they placed both live and dead trees and vegetation on the stacks in the work area. Mr Bruce said he did not personally take any fallen trees from Lot 2 down to Lot 1, however he accepted that Mr Venn had asked him to remove two fallen trees.

109 Secondly, the observational and photographic evidence of the various persons who visited Lot 1 between May 2007 and July 2008 was compelling and mutually corroborative of the picking of live native plants and contradicts Mr Venn's accounts. Mr Venn's accounts are in defiance of the facts.

110 Thirdly, Dr Keith's observational and opinion evidence, which I also find persuasive, logical and supported by the evidence, contradicts Mr Venn's accounts.

111 Fourthly, satellite and aerial photography of Lot 1 and surrounding lands, including after the June 2007 storm, disproves Mr Venn's assertion that the part of Lot 1 that was cleared and filled was a "dead area" with just dead sticks in the air, with nothing growing. Green canopies of trees and green ground cover are clearly visible on Lot 1, in contrast to the obviously dead trees in the inundation area to the north of Lot 1, on Lot 3 in DP 1029487.

112 Fifthly, Mr Venn's particular statements in his affidavits about locations of activities, events and things had an air of verisimilitude, but on being challenged in cross-examination were proven to be incorrect on a number of occasions. For example, Mr Venn repeatedly described the part of Lot 1 that was cleared and filled as a dead area and included photographs to support his assertion. Yet these photographs were proven to be taken in and to depict the dead zone to the north of and outside the cleared area near the boundary of Lot 3 in DP 1029487. Mr Venn, in his affidavits and the annexed maps and captioned photographs, sought to describe with authority and exactitude, the boundaries between Lot 1 and Lot 2 and the activities, events and things that occurred on each Lot. Yet, when challenged in cross-examination, Mr Venn expressed ignorance on where the boundaries were or on what Lot particular things were located. In response to one challenge as to incorrect captioning of a photograph, he explained that his solicitor prepared most of the affidavit and he didn't go through it with a fine toothcomb checking every detail.

113 More generally, Mr Venn was reluctant to concede he might be incorrect in his accounts that only dead trees were removed or that no injury to live native plants occurred, even when presented with photographic or other evidence to the contrary. This included satellite photographs taken in December 2006 and June 2007 showing live green trees on Lot 1 where Mr Venn had said the trees were dead, as well as photographs of trees pushed over still with leaves, scrape marks and other injury to live trees consistent with being caused by an excavator, stacks of timber pushed together, sedges in the ground or pushed aside to form the earthen bund.

114 Many times in cross-examination in response to a proposition put to him which was inconsistent with his account or a proposition that his account was incorrect, Mr Venn merely said words to the effect of "if you say so". Sometimes, Mr Venn would venture a speculative answer not previously raised by him in his affidavits or oral evidence in chief. One example was when he was shown a photograph (photograph 100-3362) of a long, jagged, vertical scar to the bark of a standing tree consistent with mechanical damage by an excavator, in the area of the pile of fill in the north-western edge of the cleared area, Mr Venn said that the scar could be caused by anything, indeed even "a beetle could cause that". Another concerned a surveyor's peg with the word "Lot 1" written on it that was placed in an obvious position on the boundary of Lot 1 and Lot 2 in the middle of the lawn area on the foreshore but which then disappeared. Mr Venn denied knowledge of seeing it before its disappearance but then volunteered that it was probably taken by a scout as it would have been a good sword.

115 I find Mr Venn's evidence to be unreliable and do not accept it unless it is corroborated by another witness or reliable documentary evidence.

The plants are part of endangered ecological communities

116 The final element is whether the plants that were picked were part of one or both of the Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest, endangered ecological communities. Evidence establishing the presence of endangered ecological communities on Lot 1, and that the plants picked were part of those communities, was given by Dr Keith, an ecologist, and Dr Hazelton, a soil scientist.

Dr Keith's evidence on the ecological communities

Dr Keith's expertise in ecological communities

117 The principal evidence on this issue was that of Dr David Keith, a highly qualified and knowledgeable ecologist whose current position is a Senior Principal Research Scientist in the Biodiversity Conservation Science Section of the Office of Environment and Heritage. Dr Keith has served for 6 years on the NSW Scientific Committee, the statutory body established under the Threatened Species Conservation Act, with responsibility for listing threatened species, populations, ecological communities and threatening processes under that Act.

118 Dr Keith has 25 years experience in vegetation survey, including diagnosis, description and analysis of ecological communities and their associated soils. He has particular research interest in ecological communities and floodplain vegetation. He has authored over 60 peer reviewed scientific articles in leading national and international journals and books, a compilation map of native vegetation for NSW for the NSW Biodiversity Strategy and the award winning monograph on native vegetation in NSW, Ocean Shores to Desert Dunes: The native vegetation of NSW and the ACT , Department of Environment and Conservation, Sydney, 2004.

119 Dr Keith's research work and papers on coastal floodplain vegetation provided much of the scientific basis for the Scientific Committee's Final Determinations under the Threatened Species Conservation Act to list the two endangered communities of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest, amongst others. The Scientific Committee's Final Determinations to list each of these ecological communities cites Dr Keith's research papers, including Keith D A and Scott J "Native vegetation of coastal floodplains - a diagnosis of the major plant communities in New South Wales" (2005) 11 Pacific Conservation Biology 81-104.

Dr Keith's evidence

120 Dr Keith's evidence comprised an affidavit of 10 November 2009 and annexed expert report as well as oral evidence at the hearing. His expert testimony was based on a site inspection on 30 June 2009, aerial and site photographs at various times, and various reports, papers, books, maps and websites that he consulted in preparing his evidence.

121 Dr Keith identified two portions of the Disturbed Area on Lot 1: the low-lying flat on the lake-side and an elevated area on the land-side of the Disturbed Area. Dr Keith concluded that Swamp Oak Floodplain Forest was and still is present on the low-lying flat and River-Flat Eucalypt Forest was and still is present on the elevated area.

Dr Keith's conclusion and reasons that Swamp Oak Floodplain Forest exists on Lot 1

122 Dr Keith concludes that Swamp Oak Floodplain Forest is present on the subject site and was present within the Disturbed Area prior to the Relevant Conduct [of clearing and filling]. "This ecological community currently occurs as remnant patches on the low-lying flat within and adjacent to the Disturbed Area and formerly occurred on areas of the low-lying flat that had been disturbed by the Relevant Conduct." (Keith expert report, p 3).

123 Dr Keith's conclusions were based on application of the description in the Final Determination for Swamp Oak Floodplain Forest to the facts concerning the assemblage of species, the location in the particular area in which the assemblage of species occurs, the edaphic and physiographic conditions and the structure of the vegetation community on Lot 1.

Assemblage of species

124 Paragraph 1 of the Final Determination lists the characteristic species of the Swamp Oak Floodplain Forest endangered ecological community.

125 Dr Keith recorded 31 species of native plants in remnant vegetation on the low-lying flat within and adjacent to the Disturbed Area. Of the 31 recorded species, 16 are included in the 45 native plant species listed in paragraph 1 of the Final Determination of Swamp Oak Floodplain Forest (Keith expert report, p 4).

126 Paragraph 4 of the Final Determination contains a text description of the dominant tree species and a selection of frequent or prominent species found in the understorey of Swamp Oak Floodplain Forest. Dr Keith analysed the consistency of the vegetation in and around the Disturbed Area with the description of dominant and subordinate species in paras 4 and 5 of the Final Determination. Dr Keith states:

"During my inspection of the study site, I recorded nine of the 22 species mentioned in paragraph 4 of the Final Determination ... Paragraph 4 notes that Swamp Oak Floodplain Forest 'has a dense to sparse tree layer in which Casuarina glauca (swamp oak) is the dominant species northwards from Bermagui'. Paragraph 5 of the Final Determination further identifies dominance by Casuarina glauca as one of the 'features that distinguish Swamp Oak Floodplain Forest from other Endangered Ecological Communities on the coastal floodplains.' During my inspection, I observed that Casuarina glauca was 'common' on the subject site ... and I identified this species as the dominant tree of the local vegetation on the low-lying flat. I also identified Casuarina glauca as occurring within the Disturbed Area based on my examination of aerial photography and site photographs that were taken prior to the Relevant Conduct. Paragraph 4 also states that 'other trees including Acmena smithii (lilly pilly), Glochidion s pp (cheese trees) and Melaleuca spp (paperbarks) may be present as subordinate species, and are found most frequently in stands of the community northwards from Gosford.' I recorded two of these subordinate species ( Glochidion ferdinandi and Melaleuca quinquenervia ) on the subject site". (Keith expert report, pp 4-5).

127 Dr Keith said the vegetation in and around the Disturbed Area was consistent with the characteristic species and the dominant and subordinate trees identified in the Final Determination. Dr Keith states:

"The Final Determination contains a general description of the community that is intended to be applicable to its entire distribution along more than 1,000 km of NSW coastline. The Disturbed Area and its surrounds represent a very small fraction of this total distribution. In view of this relativity, the 16 Identified Indigenous Species that I recorded on the subject site that are listed in the Final Determination as characteristic of Swamp Oak Floodplain Forest, in my opinion, indicate the existence of this Endangered Ecological Community within and near the Disturbed Area. The presence of species identified in the Final Determination of dominant and subordinate trees of Swamp Oak Floodplain Forest further supports the conclusion that this community is present within and near the Disturbed Area. Based on photographic evidence, a larger area of Swamp Oak Floodplain Forest than currently exists was present within the Disturbed Area prior to Relevant Conduct (see below)" (Keith expert report, p 5).

128 Dr Keith considers the issue of variability of the species composition of Swamp Oak Floodplain Forest. Dr Keith states:

"A number of species listed as characteristic of the community in Paragraph 1 of the Final Determination were not recorded within or near the Disturbed Area. In my opinion, this is expected because Swamp Oak Floodplain Forest exhibits natural variability in species composition and because the subject site represents a very small fraction of the total distribution of the community. Recognising natural variability in the community, Paragraph 1 of the Final Determination states, 'the composition of Swamp Oak Floodplain Forest is primarily determined by the frequency and duration of waterlogging and the level of salinity in the groundwater. Composition also varies with latititude.' Paragraph 2 of the Final Determination further states that 'The species composition of a site will be influenced by the size of the site, recent rainfall or drought conditions and by its disturbance (including fire, grazing, flooding and land clearing) history. The number and relative abundance of species will change with time since fire, flooding or significant rainfall, and may also change in response to changes in grazing regimes. At any one time, above-ground individuals of some species may be absent, but the species may be represented below ground in the soil seed banks or as dormant structures such as bulbs, corms, rhizomes, rootstocks or lignotubers.' My field experience in Swamp Oak Floodplain Forest at other locations indicates that small areas of the community typically support low numbers of vascular plant species ... In my opinion, the number of species found in remnant vegetation (less than 1 ha in extent) within or near the Disturbed Area is consistent with expectations based on the above estimates, taking into account the natural variability within the community" (Keith expert report, pp 5-6).

129 Finally, Dr Keith considers the presence of other native plant species that are found in Swamp Oak Floodplain Forest as corrobative of his conclusion that that community occurs on Lot 1:

"A number of Identified Indigenous Species recorded during my inspection of the Disturbed Area are not listed in Paragraph 1 of the Final Determination. Paragraph 2 of the Final Determination states 'the total species list of the community is considerably larger than given above [in Paragraph 1], with many species present at only one or two sites or in low abundance.' Based on my field experience in Swamp Oak Floodplain Forest, the additional species that I recorded on the subject site are part of this larger list referred to in paragraph 2 of the Final Determination. For example, two species recorded on the subject site, Apium prostratum and Leptinella longipes , were listed in descriptions of map units 106 and 107 (see Tindall et al. 2004), both of which are defined as part of Swamp Oak Floodplain Forest in Paragraph 8 of the Final Determination. In my opinion, this indicates that these Identified Indigenous Species are part of Swamp Oak Floodplain Forest, even though they are not listed as characteristic species of the community in Paragraph 1 of the Final Determination" (Keith expert report, pp 6-7).

The location in particular area

130 The Final Determination describes the location in which the Swamp Oak Floodplain Forest endangered ecological community occurs in terms of biogeographical region and local government area. Dr Keith concludes that Lot 1 accords with this locational description:

"Paragraphs 1 and 3 of the Final Determination of Swamp Oak Floodplain Forest state that the community occurs within the NSW North Coast, Sydney Basin and Southeast Corner bioregions, as defined by Thackway & Cresswell (1995). Paragraph 3 states that the community is known from parts of a number of Local Government Areas within these bioregions including Wyong Local Government Area. The Disturbed Area occurs within the Sydney Basin bioregion as defined by Thackway & Cresswell (1995) and within the Wyong Local Government Area. The location of the Disturbed Area therefore matches the Final Determination's description of the particular area in which Swamp Oak Floodplain Forest occurs" (Keith expert report, p 7).

Edaphic and physiographic conditions

131 The Final Determination describes the edaphic and physiographic conditions in which the Swamp Oak Floodplain Forest endangered ecological community occurs. Edaphic conditions may include the physical, chemical and biological properties of soils and the parent rock from which the soils are derived. Physiographic conditions include topographical elements such as aspect, slope, drainage, microclimates and elevation.

132 Paragraphs 1 and 6 of the Final Determination of Swamp Oak Floodplain Forest described the edaphic and physiographic conditions of Swamp Oak Floodplain Forest. Dr Keith concludes that land within and surrounding the Disturbed Area matches these edaphic and physiographic conditions:

"Paragraph 1 of the Final Determination states that Swamp Oak Floodplain Forest is 'associated with grey-black clay-loams and sandy loams, where the groundwater is saline or sub-saline, on waterlogged or periodically inundated flats, drainage lines, lake margins and estuarine fringes associated with coastal floodplains.' Paragraph 5 [now 6] further states that the community 'generally occupies low-lying parts of floodplains, alluvial flats, drainage lines, lake margins and fringes of estuaries; habitats where flooding is periodic and soils show some influence of saline ground water. This latter habitat feature sets it apart from other floodplain communities.' I inspected surface soils on the subject land at several locations within and immediately surrounding the Disturbed Area. The soils on the low-lying flat adjacent to Lake Munmorah differed from those on the elevated area to the west of the Disturbed Area. On the flat, these soils were of dark grey colouration and included quartz sand particles within a matrix of fine loamy organic material. They therefore fit the description of 'grey-black' and 'sandy loam' in the Final Determination. On elevated area to the west of the Disturbed Area, the soils had a paler grey colouration and sandier texture.

The subject site is located on the shores of Lake Munmorah, which forms part of a chain of connected coastal lakes, opening to the sea at The Entrance, and hence subject to title influence. Available data on the salinity of waters in Lake Munmorah indicate that salinity varied within the range 18.6-29.8 parts per thousand (equivalent to 1.86-2.98%) during sampling periods between 1963 and 1991 (King & Hodgson 1985, p 24), with variations related to the proximity to freshwater inflow or ocean influence. This range of values is well above levels regarded typical of freshwater (less than 0.1%), less than average salinity of ocean water (approximately 3.5%) (UCAR 2001) and therefore fits the description of saline or sub-saline water. The soils inspected were on a flat within 3-15 metres of the lake's edge and approximately one metre elevation or less above the lake surface. Given the close lateral and vertical proximity of saline or sub-saline lake waters to the subject site, it is very likely that saline salts diffuse laterally into the water table beneath the subject site. This is corroborated by the local abundance on the site of Identified Indigenous Species such as Casuarina glauca , Baumea juncea and Juncus kraussii subsp australiensis , as these are known to be associated with sub-saline soils. In view of the above, I consider it very likely that the groundwater on the subject site is 'saline or sub-saline', as described in the Final Determination.

On the day of my inspection, the soils contained copious moisture at surface level and standing water was visible within local depressions on the site (as depicted in Photograph P6300021, Attachment C). This indicates that soils on the site are 'waterlogged or periodically inundated', consistent with the description in the Final Determination. The location of the site on the 'lake margins' of Lake Munmorah is also consistent with the description in the Final Determination. King & Hodgson (1985) state that the hydrodynamics of the lake system are controlled largely by catchment runoff and that Colongra Creek is the only major stream flowing into Lake Munmorah. Inundation and waterlogging of land on the lake margins (including the subject site) is therefore likely to be influenced by catchment runoff and flooding of Colongra Creek, which enters the lake approximately one kilometre to the north of the subject site. These hydrological processes define a means by which the ecological community within and near the Disturbed Area is associated with a floodplain landform (i.e. the floodplain of Colongra Creek).

The association between a floodplain and the ecological community within and near the Disturbed Area is further corroborated by mapping of soil landscapes on the Lake Macquarie 1:100 000 map sheets (Murphy 1993) ... This map shows an area of the Wyong Soil Landscape extending along Colongra Creek and around the margin of Lake Munmorah, including the subject site, on the northern and north-eastern perimeters of Colongra Lake [sic, Swamp] Nature Reserve. The Wyong Soil Landscape is described by Murphy (1993) as 'broad, poorly drained deltaic floodplains and alluvial flats of Quaternary sediments on the Central Coast Lowlands. Slope gradients <3%; local relief <10m. Meander scrolls, oxbows, and swamps are common. Extensively cleared open forest.' Its soils are described as 'deep (>200cm Yellow Podsolic Soils (Dy 5.11, Dy 5.51), Brown Podzolic Soils (Db 2.11), Soloths (Dy 5.81, Dy 5.41) with some Humus Podzols (Uc 2.22) around lake edges.' The notes further comment that the Wyong Soil Landscape is subject to 'flooding, seasonal waterlogging, foundation hazard, permanent waterlogging (localised), streambank erosion (localised), acid sulphate potential (localised), strongly acid, poorly drained, impermeable soils of very low fertility with saline subsoils.' These features are consistent with those described in the Final Determination of Swamp Oak Floodplain Forest.

Paragraph 1 of the Final Determination states that 'Swamp Oak Floodplain Forest generally occurs below 20 m (rarely above 10 m) elevation.' Examination of the Catherine Hill 1:25,000 scale topographic map sheet (NSW Land Information Centre Map Number 9231-4S), shows the entire Disturbed Area and its surrounds as lying below the 10 m contour line ... A Spot Height marked on this map in the south-western area of Colongra Swamp Nature Reserve suggests that the maximum elevation within the Reserve is 11 metres. My observation during field inspection confirmed that the surface level of the tidally-influenced Lake Munmorah lies only a few metres below the Disturbed Area in vertical dimension. From this information, I conclude that the elevation of the Disturbed Area and its surrounds is below 10 m, consistent with the elevational range of Swamp Oak Floodplain Forest described in the Final Determination.

In my opinion, the nature of soils, hydrology, landscape and elevation of the Disturbed Area and its immediate surrounds conform with the description of these features in the Final Determination of Swamp Oak Floodplain Forest. As supplementary descriptors, these features corroborate the existence of Swamp Oak Floodplain Forest within and near the Disturbed Area. My opinion is based on direct observations of the site, as well as information obtained from literature and maps relating to the Disturbed Area. In my opinion, the close correspondence of soils, hydrology, landscape and elevation observed and mapped within and near the Disturbed Area with those described in the Final Determination also indicate that the habitat of Swamp Oak Floodplain Forest is present within and near the Disturbed Area" (Keith expert report, pp 8-11).

Structure of the vegetation community

133 The Final Determination of Swamp Oak Floodplain Forest also contains a description of the structure of the community. Dr Keith concludes that the vegetation in and around the Disturbed Area is consistent with the structure of Swamp Oak Floodplain Forest described in the Final Determination:

"Paragraph 1 of the Final Determination states that 'The structure of the community may vary from open forests to low woodlands, scrubs or reedlands with scattered trees. Typically these forests, woodlands, scrubs and reedlands form mosaics with other floodplain forest communities and treeless wetlands, and often they fringe treeless floodplain lagoons or wetlands with semi-permanent standing water (e.g. Pressey 1989a).' The trees observed immediately adjacent to the Disturbed Area are indicative of forest or woodland structure. An abundance of reedland species, Juncus kraussii subsp australiensis and Baumea juncea , was observed to be present beneath and amongst the trees. Inspection of an aerial photograph taken on 16 December 2006 ... before the Relevant Conduct, indicates that trees were present in the Disturbed Area and open areas visible amongst the trees indicate that the site supported a mosaic of forest, woodland and reedland, consistent with the description of vegetation structure in the Final Determination." (Keith expert report, p 11).

Adoption of Dr Keith's conclusion and reasons on Swamp Oak Floodplain Forest

134 I accept and adopt Dr Keith's evidence, including his conclusion and reasons, that Swamp Oak Floodplain Forest did occur and still occurs on the low-lying flat in and near the Disturbed Area of Lot 1. Dr Keith was cross examined but only on a few particular matters. The cross-examination did not challenge or cause Dr Keith to withdraw his conclusion or his reasons for reaching his conclusion that Swamp Oak Floodplain Forest was and still is present on the low-lying flat in and near the Disturbed Area of Lot 1.

Dr Keith's conclusion and reasons that River-Flat Eucalypt Forest exists on Lot 1

135 Dr Keith concludes:

"[I]t appears more likely than not that River Flat Eucalypt Forest on coastal floodplains is present within and near the Disturbed Area." (Keith expert report, pp 20-21, see also p 3).

136 Dr Keith's conclusion was based on application of the description in the Final Determination for River-Flat Eucalypt Forest to the facts concerning the assemblage of species, the location in the particular area, and the edaphic and physiographic conditions of Lot 1.

Assemblage of species

137 Dr Keith observed that the elevated area contains a different ecological community to that present on the low-lying flat. Its distinguishing features include dominance by Eucalyptus tereticornis and Angophora floribunda with an understorey that includes prominent small trees and shrubs. In particular, Dr Keith found:

" Â· seventeen of 29 species recorded on the elevated area are listed in the Final Determination as characteristic of River-Flat Eucalypt Forest on Coastal Floodplains ...

· the dominant tree species on the site ( Eucalyptus tereticornis and Angophora floribunda ) are identified in the Final Determination as amongst the most widespread and abundant dominant species of the community". (Keith expert report, p 20).

The location in the particular area

138 Dr Keith noted that "the location of the site is within a bioregion (Sydney Basin) and Local Government Area (Wyong) identified in the Final Determination as part of the particular area within which the community occurs". (Keith expert report, p 20).

Edaphic and physiographic conditions

139 Dr Keith found that "some abiotic components of the Habitat, such as soil texture (sandy loam) and elevational range (below 50 m above sea level) are consistent with the Final Determination". (Keith expert report, p 20).

Adoption of Dr Keith's conclusion and reasons on River-Flat Eucalypt Forest

140 I accept and adopt Dr Keith's evidence, including his conclusion and reasons, that River-Flat Eucalypt Forest did occur and still occurs on the elevated area within and near the Disturbed Area of Lot 1. Dr Keith's evidence concerning River-Flat Eucalypt Forest was not challenged in cross-examination.

Dr Hazelton's evidence on the soils and landforms of the ecological communities

141 Dr Hazelton gave evidence, in the form of an affidavit of 30 March 2011 and enclosed expert report, on the soils and geomorphology of Lot 1 and whether they matched those described in the Scientific Committee's Final Determination for the Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest endangered ecological communities.

142 Dr Hazelton noted that Lot 1 was in the Wyong Soil Landscape described in Murphy C L (1993), Soil Landscapes of Gosford - Lake Macquarie 1:100 000 Sheet, Department of Conservation and Land Management NSW as:

" · topography generally poorly drained deltaic floodplains and alluvial flats,

· limitations including flooding and both seasonal and permanent waterlogging,

· surface soil material ranging from loam to silty clay loam." (Hazelton expert report, p 4).

143 Dr Hazelton inspected Lot 1 on 28 April 2010 and excavated 9 soil pits. Soil pits 1, 4 and 9 had fill to a depth of 90cm - 100cms, then sandy clay loam, clay loam or sandy loam beneath. Other soil pits had less or no fill on top but still had soils from sandy loams to clay loams. Dr Hazelton concludes that:

"All of the soil materials described and examined at Lot 1 at sites 1-9 have the same soil texture (black clay loams and sandy loams with some evidence of silt) as the soils described in the Final Determinations for the listed endangered ecological communities Swamp Oak Floodplain Forest EEC and River-Flat Eucalypt Forest EEC. Although no samples were taken to test for salinity, according to Murphy (1993) the subsoils in the Wyong Soil Landscape are moderately saline.

The soil materials, clay loams and sandy loams at Lot 1 have been deposited by streams to form an alluvial landscape and this is apparent because a distinctive profile characteristic has not developed." (Hazelton expert report, p 23).

144 Dr Hazelton also concluded that the landform characteristics match those in the Final Determinations for the two endangered ecological communities:

"Lot 1 is located within the Wyong Soil Landscape, described by Murphy (1993) as a broad, poorly drained floodplain. According to Speight (1990) a floodplain is an alluvial plain 'characterised by frequently active erosion and aggradation by channelled or overbank stream flow'.

From the Soil Landscapes of the Gosford-Lake Macquarie 1:100 000 map sheet [Murphy and Tille (1993)] it can be seen that a creek line which would have flowed into Lot 1 has been captured by a drain. Numerous streams are evident in the area of Lot 1 ... There is also a distinctive 'stone line' at Site 6 which could be attributed to stream disposition.

The topography at Lot 1 is a poorly drained flat close to a lake margin and similar to that described by Murphy (1993) and quoted on page 2 of this report. There was evidence of poor drainage and waterponding between Site 3, Site 4 and Site 5 because of the presence of peaty topsoil. At Site 3 the soil was wet at 40 cm evidence of the water table. These characteristics fit the descriptions in the Final Determinations for the listed endangered ecological communities Swamp Oak Floodplain Forest EEC and River-Flat Eucalypt Forest EEC.

At Sites 7, 8, 9 there is also a slightly elevated terrace (see photo 8) for the River-Flat Eucalypt Forest EEC." (Hazelton expert report, pp 23-24 and see also p 25).

145 Dr Hazelton's evidence was not challenged by Mr Venn and she was not required for cross-examination. I accept and adopt Dr Hazelton's evidence, including her conclusions and reasons.

Mr Venn's denial of presence of endangered ecological communities

146 Mr Venn denied that the vegetation on Lot 1 was part of the endangered ecological community of Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest for three reasons. First, Mr Venn said that two prior reports on Colongra Swamp generally described the vegetation differently and not as part of either Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest. Secondly, Mr Venn said that his use of Lot 1 since around 1975-1976 has so damaged the vegetation that it no longer meets the description of Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest. Thirdly, Mr Venn said that the subsidence of Lot 1 and surrounding lands in 1992 and 1998, and the concomitant inundation by saline lake water, changed the environment and vegetation so that it does not meet the description of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest. I do not accept these arguments.

Prior vegetation surveys of Colongra Swamp

147 Mr Venn did not call any experts to give evidence, including in relation to the vegetation, soils or landforms, to establish that neither the Swamp Oak Floodplain Forest nor the River-Flat Eucalypt Forest endangered ecological communities existed on Lot 1.

148 Instead, Mr Venn sought to rely on two prior reports on the vegetation of Colongra Swamp, which he submitted established that the vegetation was not part of either Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest.

149 Mr Venn also sought to rely on his own observations of the vegetation and topography and the effects of subsidence and inundation.

150 Mr Venn annexed to his first affidavit of 16 February 2011, a report prepared by Sainty & Associates in November 1998 on Colongra Wetland Subsidence Impacts Assessment ("the Sainty Report"). Mr Venn did not call any witness from Sainty & Associates to give evidence. The Sainty Report was prepared for a different purpose and, for the most part, for different land to Lot 1.

151 The Sainty Report noted that the Endeavour Colliery (now owned by Powercoal Pty Ltd) had mined a large area, including beneath the Colongra Wetland, from 1963 and that mining of the wetland ceased in about 1988. Subsidence as a result of mining had caused a loss in elevation of the wetland and surrounding buffer zone, which included an area of foreshore to the north of the wetland on the margins of Lake Munmorah. The Sainty Report noted that Sainty & Associates were commissioned by Powercoal Pty Limited to "undertake an investigation of the current and potential impacts, due to subsidence, and to determine feasible rehabilitation and management strategies for the impacted areas of Colongra Wetland." (Sainty Report, p (i) Executive Summary).

152 Colongra Wetland is a perched freshwater wetland next to, but separated by a natural land barrier or weir from, the saltwater Lake Munmorah. Part of the southern, open water zone of the wetland extends on to Lot 1. It is, however, outside and to the west of the part of Lot 1 disturbed by clearing and filling, the subject of these proceedings.

153 Mr Venn relied on the Sainty Report for its description of the vegetation at that time of the site survey to found his submission that the vegetation was not part of either Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest. Mr Venn, first, relies on the Sainty Report identifying and labelling distinct vegetation communities as "Swamp Forest", "Rush/Sedge community", "Foreshore Forest" and "Wetland margin including 'Weir'" and not "Swamp Oak Floodplain Forest" or "River-Flat Eucalypt Forest", as indicating that the latter endangered ecological communities did not occur. Secondly, Mr Venn claims that the Sainty Report says that all of the four communities that it identified were "dominated" by Melaleuca quinquenervia with the exception of the Foreshore Forest which was dominated by Melaleuca quinquenervia and Casuarina glauca . However, by the time of the Sainty Report in 1998, the Casuarinas in the Foreshore Forest were exhibiting dieback or had died. Hence, Mr Venn says that the Casuarinas would no longer have been dominant. Mr Venn says that this dominance of Melaleuca quinquenervia in the communities contrasts with the Scientific Committee's description in the Final Determination for Swamp Oak Floodplain Forest that Casuarina glauca is the dominant species (para 4 of the Final Determination).

154 I will, therefore, consider the Sainty Report and its description of the sites surveyed.

155 In order to assess the current impacts from subsidence and to monitor future impacts, Sainty & Associates undertook flora surveys on and either side of two permanent transects along existing survey lines and random sampling at four pre-determined sites. Transect 1 was outside and far to the west of Lot 1. Transect 2 started in Lot 1 (peg 83 on the survey line) and ran in a west, north-west direction, leaving Lot 1 around peg 108 and continuing across the neighbouring Lot 2 in DP 1029487 until peg 221 on the survey line. Eight quadrats were sampled along transect 2 with the first quadrat located at peg 109 (just outside and to the west of Lot 1 and a considerable distance from the Disturbed Area) and the other 7 quadrats along the survey line going away from Lot 1 in a west, north-west direction. The remoteness of these sites from the Disturbed Area in Lot 1 makes the flora surveyed at these sites of no proven relevance to the vegetation on the Disturbed Area of Lot 1.

156 Three of the four predetermined sites were also outside Lot 1. Site 1 was to the south of the open water zone of the wetland area (probably in Lot 1 of DP 519335 but a considerable distance inland and to the west of Lot 1). Site 2 is to the west of the wetland where the open water zone changes to a shallower zone (in Lot 2 of DP of 1029487 and a considerable distance inland and to the west of Lot 1). Site 4 is to the north of the open water zone along the freshwater wetland margin and includes part of the weir separating the wetland from the lake. This site may be mostly in the north-eastern corner of Lot 1 but is to the west, northwest of the Disturbed Area on Lot 1. Site 3 is further to the north again of Site 4 in the low-lying foreshore region of Lake Munmorah that had been inundated by saline lake water (in Lot 3 in DP 1029487 and to the northwest of Lot 1).

157 The Sainty Report used labels to describe the vegetation communities at each of the four predetermined sites. Site 1 was described by the label "Swamp Forest", Site 2 as "Rush/Sedge community"; Site 3 as "Foreshore Forest"; and Site 4 as "Wetland margin including 'Weir'". These are no more than shorthand labels and not determinative of the vegetation community to which the labels are applied. The Sainty Report describes each community so labelled in the report, with reference to the flora survey data collected. It is these descriptions and data, and not the labels, that are relevant. The assignment of labels in the Sainty Report can have no legal significance for the classification of the vegetation on Lot 1 as being Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest endangered ecological communities.

158 The only site of potential relevance to understanding the vegetation in the Disturbed Area of Lot 1 is Site 3. Mr Venn relied upon the flora survey data and the analysis for Site 3 as being relevant. Mr Venn did not rely on the data and analysis of the vegetation in Site 4, presumably in recognition that Site 4, although in Lot 1, is a wetland buffer zone on the margin of the perched freshwater wetland and the weir between the freshwater wetland and the saltwater Lake Munmorah. The Disturbed Area of Lot 1 does not have these characteristics.

159 The Sainty Report notes that for each site, including Site 3, three plots of 10mm x 10mm (100m ) were randomly selected and marked out to quantify the species composition and abundance of wetland vegetation. Further quantification of species richness and abundance, at a smaller scale, was made by sampling five quadrats of 2mm x 2mm (4m ) within each of the 100m plots.

160 The Sainty Report classified Site 3 as a shore forest dominated by Melaleuca quinquenervia and Casuarina glauca with occasional Livistona australis . The site had been subject to inundation from saline lakewater. The understorey varied from ferns, grasses, to reeds and occasional sedges and rushes. Melaleuca trees were defoliated, indicating a high level of stress. The majority of Casuarina trees were exhibiting dieback or had died. The species recorded as present included characteristic species of Swamp Oak Floodplain Forest, being the trees of Melaleuca quinquenervia , Casuarina glauca and Glochidion ferdinandi , the sedges and rushes of Baumea juncea , Gahnia clarkei and Phragmites australis ; the grass Entolasia marginata ; and the perennial herb, Leptinella longipes (found in quadrat 3) which Dr Keith notes was listed in the descriptions of map units 106 and 107 which are defined as part of Swamp Oak Floodplain Forest in paragraph 8 of the Final Determination (Keith expert report, p 6). The composition of the ground stratum is consistent with that described as occurring on the fringes of coastal estuaries where soils are more saline.

161 In the conclusion, the Sainty Report noted that:

"Impact on vegetation due to subsidence is clearly evident along the foreshore where a large area of foreshore forest is dead. Surviving trees will continue to die for a number of years after the changes in the hydrological regime have taken place. The trees will most likely remain standing after death ... Large areas of understorey that were formerly dominated by a number of fern species and grasses have died except where elevation is higher and inundation has not occurred." (Sainty Report, p 28).

162 The Sainty Report also noted that:

"Inspection of an unaffected area of the foreshore adjacent to Colongra Point [which is in Lot 2] revealed a number of salt and semi-salt tolerant species. These species ( Sarcocornia quinqueflora , Baumea juncea , Juncus kraussii , Paspalum vaginatum , Leptinella longipes and Tetragonia tetragonoides are likely to expand their range and colonise where vegetation has been lost (p 28).

163 As noted earlier, Baumea juncea and Juncus kraussii are each listed as characteristic species of Swamp Oak Floodplain Forest and Leptinella longipes occurs in communities mapped as Swamp Oak Floodplain Forest.

164 The floristic descriptions in the Sainty Report of the vegetation at Site 3 and the affected foreshore area near Colongra Point do not support Mr Venn's submission that the vegetation in the Disturbed Area of Lot 1 prior to being cleared and filled was not Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest.

165 First, Mr Venn has not established on the evidence that the vegetation recorded in the Sainty Report at Site 3 is or is not the same as the vegetation at the part of Lot 1 that was cleared and filled. Hence, it is not possible to draw an inference from the data and the analysis of the vegetation at Site 3 as to the vegetation in the Disturbed Area of Lot 1.

166 Secondly, the Sainty Report's data and analysis of the vegetation in Site 3 does not speak against a conclusion that the vegetation could be part of Swamp Oak Floodplain Forest. To the contrary, the floristic descriptions are consistent with those for Swamp Oak Floodplain Forest, including the presence of three characteristic trees of Casuarina glauca , Melaleuca quinquenervia and Glochidion ferdinandi ; the occurrence of vines; and the ground cover of forbs, sedges and grasses with a composition reflecting the more saline conditions at Site 3.

167 The statements in the Sainty Report concerning dominance of tree species do not preclude the vegetation being part of Swamp Oak Floodplain Forest. The vegetation at Site 3 was described as being dominated by both Melaleuca quinquenervia and Casuarina glauca . The description in the Scientific Committee's Final Determination of Swamp Oak Floodplain Forest does not preclude such co-dominance. As noted earlier, the Final Determination accepts that individual sites may exhibit differences in species composition and dominance. Dr Keith's evidence is that on the low-lying flat of the Disturbed Area, Casuarina glauca was the dominant tree (Keith expert report, p 5). Mr Venn's evidence was that the northern end of the foreshore land (which adjoins Lot 3 of DP 1029487) where the dead zone occurs was "always mostly Melaleuca quinquenervia , with the odd Casuarina here and there. The Melaleucas gradually thinned as you came south [into the Disturbed Area of Lot 1] ... I have always had Melaleuca and Casuarina around the Lot 2 boundary. I have observed that there have always been some small areas of Casuarina glauca up around the north-west of the Land as well, but otherwise they've just been scattered here and there among the Melaleucas, which dominate DP 509889." (Venn second affidavit of 11 May 2011, paras 73 and 74).

168 Accordingly, the Sainty Report does not establish that the vegetation on the part of Lot 1 that was cleared and filled was not Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest.

169 Mr Venn also relied on a document obtained from the NPWS, entitled "Summary of Vegetation Monitoring, March to November 2000" at the four sites surveyed by Sainty & Associates in 1998. For Site 3, the Foreshore Forest, the Summary of Vegetation Monitoring noted that:

"There had been little regrowth after initial subsidence and consequent flooding from lake. Few species have survived in this area of frequent inundation with conductivity readings over 25mS / cm ... These species are the Common Reed, Phragmites australis , and the grey rush, Baumea juncea . All Broad-Leaved Paperbarks, Melaleuca quinquenervia and Swamp She-Oak Casuarina glauca , have died within approximately 30 m line from the lake edge, as well as a majority of the paperbarks growing between 30-50 m distance from original lake edge." (Venn first affidavit of 16 February 2011, Tab 16, p 2).

170 The Summary of Vegetation Monitoring noted that species lost from the area included saw-sedge, Gahnia clarkei , and cheese tree, Glochidion ferdinandi . On the other hand, the summary noted that there are some species recolonising in slightly higher spots, being Water Ribbons, Triglochin procera , and a wetland grass, Hemarthria uncinata , and also a salt marsh ground cover, Triglochin striata .

171 Mr Venn relies on this document to demonstrate that, by 2000, few species had survived in and around the northern boundary of Lot 1 and all of the Melaleuca quinquenervia and some Casuarina glauca had died. (Respondent's submissions 1 June 2011, para 19). Accordingly, Mr Venn submits that the vegetation could not have been, at the time of the clearing and filling between May 2007 to July 2008, part of Swamp Oak Floodplain Forest.

172 Again, I do not accept this submission. First, Mr Venn has not established that the inundation and adverse affects on vegetation on Site 3 were replicated on the Disturbed Area of Lot 1. Indeed, the satellite and aerial photography in December 2006 and June 2007, as well as other photographs taken in 2007, demonstrate a vast difference between the zone of dead trees, within which Site 3 was located, and the green trees and ground cover in and around the part of Lot 1 that was cleared and filled. As Dr Keith finds, before the relevant conduct of the clearing and filling of Lot 1, "trees were present in the Disturbed Area and open areas visible amongst the trees indicate that the site supported a mosaic of forest, woodland and reedland, consistent with the description of vegetation structure in the Final Determination" (Keith expert report, p 11). Lot 1 was, therefore, not in the condition and did not have the species composition described in the Summary of Vegetation Monitoring for Site 3.

173 Secondly, the Summary of Vegetation Monitoring's record of species that had been lost or were recovering may provide evidence that the vegetation that did exist at Site 3 before being inundated and adversely affected might have been Swamp Oak Floodplain Forest. The site contains the dominant and subordinate tree species of Casuarina glauca , Melaleuca quinquenervia and Glochidion ferdinandi , and ground cover graminoids of Gahnia clarkei , Baumea juncea , and Phragmites australis . These are all listed as characteristic species in the Final Determination for Swamp Oak Floodplain Forest. In so far as Site 3 occurred on similar topography and soils on the lake foreshore as Lot 1, this may also corroborate, rather than speak against, the conclusion that the vegetation on Lot 1 was, prior to clearing and filling, and still is part of Swamp Oak Floodplain Forest.

Disturbance caused by Mr Venn's activities

174 Next, Mr Venn submitted that his use of Lot 1 from around 1975-1976 until the commencement of the clearing and filling in May 2007, by clearing, removal of understorey, mowing and allowing the invasion of weeds, caused the vegetation on Lot 1 no longer to be part of either Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest.

175 Mr Venn says he removed undergrowth but kept the tree cover and mowed along the foreshore until about August 1992 when subsidence and consequent flooding made use of the area for camping impossible (Venn first affidavit of 16 February 2011, para 64).

176 Mr Venn relies upon the answer Dr Keith gave in his oral evidence to a question about the effects of mowing. Dr Keith said that mowing of reedland species, such as Baumea juncea and Juncus kraussii subsp australiensis , which grow on the low-lying flat on the lake foreshore, creates light at the ground surface which allows the entry of exotic species, which are shorter in stature, to establish and persist.

177 However, this answer of Dr Keith does not establish that Mr Venn's past mowing resulted in the complete removal of all native species of ground cover, including reedland species. Dr Keith did not say so in his answer and he was not cross-examined further on his answer. Dr Keith's evidence in chief, including in his expert report, clearly establishes that native species of ground cover, including the reedland species, had persisted on Lot 1, nothwithstanding any past mowing before and after the clearing and filling on the Disturbed Area of Lot 1. The photographic and direct observational evidence of Dr Keith, Mr Bruce who undertook the clearing and filling, as well as other persons who visited the site, established that Lot 1 had a ground cover of native species before the clearing and filling in 2007 and 2008.

178 Furthermore, Mr Venn's own evidence is that he ceased mowing the foreshore area after the subsidence in 1992, and again in 1998, because it was underwater or too wet (Venn first affidavit of 16 February 2011, para 4 and Venn second affidavit of 11 May 2011, para 39). Hence, if native species had been affected by mowing, there was time for them to recolonise before 2007.

179 Mr Venn relies on the infestation of weeds, particularly Lantana camara , as evidence that the vegetation was not part of Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest. Mr Venn says he recalls "the Lantana being very thick, tall and well established east of the Wetland [the inland freshwater wetland] from about the late 1970s when the electricity line went in". (Venn's second affidavit, para 76).

180 Mr Venn refers to the statements in the Sainty Report concerning infestation of Lantana. First, along transect 2, the Sainty Report stated:

"Over 80% of the understorey is dominated by Lantana camara in large dense stands (in some cases Lantana was observed 10 m up trees)" (p 24, s 6.3.2).

181 Secondly, in Site 3, the Sainty Report noted:

"The introduced Lantana camara is wide spread" (p 26, s 6.4.3).

182 Thirdly, the Sainty Report expressed a general concern about the effects the adjacent properties were having on the wetland not related to subsidence impacts: "[l]arge areas of the wetland's buffer zone have been mowed and maintained as open grassed areas. This action has removed native vegetation cover and prevented its regrowth which, in effect, could be promoting feral predation and weed invasion typical of disturbed areas" (p 36, s 10.3).

183 I do not accept that the presence of weeds means that the vegetation on Lot 1 before clearing and filling was not part of Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest.

184 First, the observations in the Sainty Report are at locations different to the Disturbed Area of Lot 1 that was cleared and filled. The 8 quadrats in which vegetation was surveyed along transect 2 were all located west of Lot 1. No inference can be drawn from the dominance of Lantana in the understorey in those quadrats to the condition of the understorey in the part of Lot 1 that was cleared and filled. Similarly, Site 3 is to the northwest of Lot 1 and no inference can be drawn from Lantana being widespread in Site 3 as to its abundance in Lot 1. The cleared areas in the wetland buffer zone are not limited to Lot 2 or Lot 1 and in any event are removed from the Disturbed Area of Lot 1.

185 Secondly, Mr Venn's evidence is that Lantana did not grow on the foreshore area of Lot 1. Mr Venn says, until he had to stop after the subsidence in 1992, he mowed the foreshore areas, which kept any Lantana at bay. After the subsidence, Mr Venn's evidence is that the area was underwater or too wet and "not even Lantana grew, because it was so waterlogged and salty" (Venn's second affidavit, para 50). Lantana only became established after filling raised the level of the foreshore land. Mr Venn says that since early 2009, after the filling, he has mowed the area to "keep the resurgent Lantana and Bitou Bush at bay: it has come back since the hydrology has improved" (Venn's second affidavit, para 51). Mr Dalton, a volunteer Bush Regenerator working in the Colongra Swamp, said in his oral evidence that he observed Lantana growing as a dominant plant in the understorey on the higher level, but not on the lower part of the land which was more open.

186 Thirdly, Dr Keith's evidence was that a close and careful analysis of the satellite and aerial photographs, particularly the colour and tone of the vegetation, reveals that areas where Lantana was established was inland and outside of the Disturbed Area of Lot 1 that was cleared and filled.

187 Fourthly, the photographic evidence and the direct observational evidence of Dr Keith, Mr Bruce and others who visited the land reveals that Lantana was not widespread in the low-lying foreshore area.

188 Finally, even if there had been Lantana and other weeds in the part of Lot 1 that was cleared and filled, this does not necessarily prevent characterisation of the vegetation as part of Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest. The Scientific Committee in the Final Determinations for each of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest expressly notes that:

• " The species composition of a site will be influenced ... by its disturbance (including fire, grazing, flooding and land clearing) history" (para 2 of each Final Determination)

• "The composition and structure of the understorey is also influenced by grazing history, changes to hydrology and soil salinity and other disturbance, and may have a substantial component of exotic grasses, vines and forbs" (para 4 of Swamp Oak Floodplain Forest Final Determination)

• "The composition and structure of the understorey is influenced by grazing and fire history, changes to hydrology and soil salinity and other disturbance, and may have a substantial component of exotic shrubs, grasses, vines and forbs" (para 4 of River-Flat Eucalypt Forest Final Determination)

• "Very few examples of Swamp Oak Floodplain Forest remain unaffected by weeds. The causes of weed invasion include physical disturbance to the vegetation structure of the community, dumping of landfill rubbish and garden refuse, polluted runoff from urban and agricultural areas, construction of roads and other utilities, and grazing by domestic livestock. The principal weed species affecting Swamp Oak Floodplain Forest include ... Lantana camara " (para 13 of Swamp Oak Floodplain Forest Final Determination and the equivalent statement in para 12 of River-Flat Eucalypt Forest Final Determination).

189 Hence, the Scientific Committee recognise that vegetation on a site can still be part of Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest endangered ecological communities notwithstanding infestation by weeds, including Lantana camara .

Disturbance caused by subsidence and changes to hydrology and salinity

190 Finally, Mr Venn relies on the subsidence of Lot 1 and surrounding lands in 1992 and 1998 and the concomitant inundation by saline lake water. Mr Venn submits that this caused a change in the environment and vegetation with the consequence that the environment and vegetation existing prior to the clearing and filling in 2007 and which exists today on Lot 1, are artefacts and not natural. Hence, Mr Venn submits, the vegetation in 2007 and also today cannot be part of the Swamp Oak Floodplain Forest or River-Flat Eucalypt Forest endangered ecological communities. I do not accept this submission.

191 First, whilst subsidence may have occurred and the low-lying flat may have become wetter, the factual evidence does not establish either extensive mortality or a change in species composition of the vegetation on the Disturbed Area of Lot 1. Obviously, the vegetation on the elevated area was and still is sufficiently high above the lake so as not to be affected by any inundation. As far as the vegetation on the low-lying flat, the satellite and aerial photography after the subsidence events in 1992 and 1998, including in 2006 and 2007, show green canopies of trees and green ground cover between trees in the Disturbed Area of Lot 1 in contrast to the dead trees and standing water between trees to the north of Lot 1 in Lot 3 of DP 1029487. The subsidence events caused the vegetation in the latter area, but not in the former area to die. Other photographic evidence and direct observational evidence of persons who were on Lot 1 in 2007 confirm that the trees and vegetation on Lot 1 were largely unaffected.

192 The falling over and death of a Melaleuca quinquenervia on the foreshore towards the boundary of Lot 1 and Lot 2 (clearly visible on satellite and other photographs in 2006 and 2007) is the exception and is not evidence of widespread death of trees on Lot 1.

193 I note the evidence of Mr Michael Shelly, an environmental consultant, who was personally involved in the work done by Environmental Resource Management (Australia) Pty Ltd ("ERM") in 1996 for Powercoal Pty Ltd at Colongra Point (on Lots 1 and 2) to rectify foreshore damage caused by subsidence. Mr Shelly says that the part of Lot 1 that was cleared and filled between May 2007 and July 2008 was "fully covered in native vegetation and undisturbed at the beginning and cessation of Powercoal's work [in 1996]. I recall that the vegetation in the 'new' area of disturbance [the area disturbed by clearing and filling by Mr Venn] was undisturbed and not affected by subsidence induced dieback at the time of my involvement in the rehabilitation of the foreshore on Lot 1, which was between late 1995 and 1996." (Shelly affidavit of 23 July 2010, para 32).

194 I also note that the NPWS "Summary of Vegetation Monitoring March to November 2000," tendered by Mr Venn, recorded that:

"The lake reached a height of 0.58 m in April, May and July of 1999 and the lake covered the foreshore to a distance of approximately 80 m at its furtherest reach, reaching the survey line between Pegs Nos. 95-100 (which had subsided approximately 0.7 m)." (Venn first affidavit, Tab 12, p 37).

195 The Summary records that in the area of inundation "much of the vegetation species was killed at this time".

196 Pegs 95-100 on the survey line are along transect 2. They are close to the northern boundary of Lot 1 with Lot 3 of DP 1029487 and are to the west, northwest of the Disturbed Area of Lot 1. The summary corroborates that the subsidence and inundation by saline lake water that killed trees and vegetation in the dead zone in Lot 3 of DP 1029487 and the northern part of Lot 1 did not have the same effect on the balance of Lot 1 including the Disturbed Area.

197 I do not accept Mr Venn's evidence stated in correspondence during 2007 and 2008 defending his actions and in his second affidavit that "the trees and other vegetation" in the part of Lot 1 that was later cleared and filled had died (Venn second affidavit, para 42); that "[i]t was waterlogged, detritus filled ooze and nothing was growing. It was a dead place." (Venn second affidavit, para 50); that the trees "had no branches, just dead sticks in the air" like those in the dead zone on Lot 3 of DP 1029487 (Venn second affidavit, para 50); and that the stand of Melaleucas and Casuarinas around the boundary of Lot 1 with Lot 2 "were the only ones left because those in the adjoining mid section of the Work Area had died." (Venn second affidavit, para 84). These statements are contradicted by the satellite and aerial photography in 2006 and 2007 and the photographic and direct observational evidence of persons who visited the site in 2007.

198 Secondly, any increase in salinity of the groundwater as a result of subsidence and inundation would not necessarily cause vegetation to fall within or outside the description of a Swamp Oak Floodplain Forest. The Final Determination for Swamp Oak Floodplain Forest describes the ecological community at a level of generality so as to include vegetation under more and less saline groundwater conditions and more and less inundation and water logging. The composition of Swamp Oak Floodplain Forest is primarily determined by the frequency and duration of water logging and the level of salinity in the groundwater (see para 1 and also paras 4 and 6 of the Final Determination for Swamp Oak Floodplain Forest). Hence, any increase, caused by subsidence, in the frequency and duration of water logging or in the level of salinity of groundwater, may change, over time, the species composition or relative abundance of species on Lot 1, but it does not necessarily cause the vegetation to be or not to be part of the Swamp Oak Floodplain Forest endangered ecological community. Dr Keith's evidence is that on the low-lying flat the vegetation was, and still is, part of Swamp Oak Floodplain Forest. The subsidence and any concomitant inundation have not affected this classification of the vegetation.

199 Thirdly, Mr Venn's submission is founded on the erroneous belief that ecological communities are static and not dynamic and hence that disturbance must cause the community to become a different community. An ecological community is a living entity, adaptively responding to disturbances in its environment. The disturbances may be due to natural events, such as fire, storms or floods or be human induced, such as clearing, increase in nutrients or introduction of alien species of plants and animals. At any point in time, an ecological community will be in a stage of response to whatever has been the disturbance history to that point in time. It would be impossible to have an ecological community that is not, in some way, disturbed. This dynamism of ecological communities is recognised in the Scientific Committee's Final Determinations of the Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest endangered ecological communities.

200 Prior to the 1992 and 1998 subsidence events, the vegetation on Lot 1 was responding to the disturbances caused by Mr Venn's various actions of clearing undergrowth, mowing and allowing the camping activities of Scouts, as well as bushfires and weed invasion and feral animals. The subsidence event simply introduced different disturbances. The vegetation adaptively responded to the changes caused by the subsidence in the hydrological regime or the salinity of the groundwater. The disturbances and adaptive responses might have differed, but the ecological community remained the same.

Conclusion on endangered ecological communities

201 For these reasons, I find that:

• there was and still is present on the low-lying flat of Lot 1, the Swamp Oak Floodplain Forest endangered ecological community;
• there was and still is present on the elevated area of Lot 1, the River-Flat Eucalypt Forest endangered ecological community; and
• the plants picked on the low-lying flat and the elevated area of Lot 1 were part of the Swamp Oak Floodplain Forest endangered ecological community and the River-Flat Eucalypt Forest endangered ecological communities respectively.

Conclusion on breach of s 118A(2)

202 I therefore find that Mr Venn, between about May 2007 and to July 2008, has breached s 118A(2) of the Parks Act by picking plants that were part of the Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest endangered ecological communities.

BREACH OF S 156A(1) OF THE PARKS ACT

The elements of the statutory provision breached

203 The second breach the plaintiff seeks to remedy and restrain is of s 156A(1)(b) of the Parks Act which relevantly provides:

"(1) A person must not, on or in land reserved under this Act or acquired under Part 11:

(b) damage or remove any vegetation, rock, soil, sand, stone or similar substance".

204 To establish a breach, the plaintiff needs to prove that Mr Venn, between about May 2007 and July 2008, damaged or removed (or was responsible for damaging or removing) any vegetation, soil, sand or similar substance on or in land reserved under the Parks Act or acquired under Part 11 of the Parks Act.

205 Mr Venn does not claim that he had any legal authority to damage or remove vegetation, soil, sand or similar substance (see 156A(2) of the Parks Act).

Mr Venn's responsibility for the actions of damage or removal

206 Mr Venn admits he is responsible for the work of clearing and filling of Lot 1 that took place between May 2007 and July 2008. The evidence to which I have referred in finding that Mr Venn picked plants of an endangered ecological community in that period of time also establishes, and I so find, that Mr Venn damaged or removed, vegetation, soil, sand or similar substance on or in Lot 1.

Damaging or removing vegetation, soil, sand or similar substances

207 Similarly, the evidence of the conduct of clearing and filling between May 2007 and July 2008 that constituted the picking of plants that are part of the two relevant endangered ecological communities also establishes, and I so find, damage to or removal of vegetation, soil, sand or similar substance under s 156A(1)(b) of the Parks Act.

Land reserved or acquired

208 The plaintiff claims that Mr Venn's conduct of damaging or removing vegetation, soil, sand or similar substance, between about May 2007 and July 2008, occurred on Lot 1 which was either "land reserved under this Act" or land "acquired under Part 11" of the Parks Act at that time.

Land acquired

209 I will start with land "acquired under Part 11" of the Parks Act. Part 11 empowers the Minister administering the Parks Act to acquire land by three means: first, acquisition under s 145 for reservation under Parts 4 or 4A of the Parks Act for conservation or other purposes; secondly, acquisition under s 146 for certain purposes including in relation to land already reserved under Parks Act; and thirdly, acquisition under s 148 of the Parks Act by gift. Only the first means is relevant in this case.

210 Section 145 provides:

"The Minister may, for the purpose of obtaining land for reservation under Part 4 or Part 4A, of conserving threatened species, populations or ecological communities, or their habitats or of preserving, protecting and preventing damage to Aboriginal objects or Aboriginal places:

(a) on behalf of Her Majesty, enter into and give effect to an agreement for the vesting in, or surrender to, Her Majesty of any land, or

(b) acquire land by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 ."

211 In this case, the Minister acquired lands from Delta Electricity for reservation as a nature reserve, being lands under Torrens title by agreement and Crown lands by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. Relevantly, Lot 1, which was under Torrens title, was acquired by agreement between Delta Electricity and the Minister.

212 The difficulty that arises in this case is that the executed transfer of the lands, including Lot 1, although lodged for registration with Land & Property Information NSW of the Department of Lands ("LPI") on 16 February 2007 (LPI assigned dealing no. AC946303 to the transfer and issued a tax invoice on 19 February 2007), was rejected by LPI on 26 June 2007 for reasons relating to another parcel of land (Lot 3 in DP 1029487) and not Lot 1 (paras 17 and 19 of the affidavit of George Demetriou of 19 April 2011). The transfer was re-lodged on 12 July 2007 but was again rejected for reasons that did not relate to Lot 1. Ultimately the problem lot (Lot 3 in DP 1029487) was removed from the transfer in order that the remaining lots, including Lot 1, could be registered. A revised transfer was lodged on 29 January 2009 and assigned LPI dealing no. AE465919Q. This transfer was registered on 10 February 2009. Registration of the transfer of Lot 1, therefore, did not occur until after the relevant conduct in May 2007 to July 2008.

213 Mr Venn submits that the Torrens title lands, including relevantly Lot 1, which were the subject of the transfer, were not "acquired" under s 145 of the Parks Act until such time as the transfer was registered. Mr Venn relies on s 41(1) of the Real Property Act 1900 which provides:

"(1) No dealing, until registered in the manner provided by this Act, shall be effectual to pass any estate or interest in any land under the provisions of this Act, or to render such land liable as security for the payment of money, but upon the registration of any dealing in the manner provided by this Act, the estate or interest specified in such dealing shall pass, or as the case may be the land shall become liable as security in manner and subject to the covenants, conditions, and contingencies set forth and specified in such dealing, or by this Act declared to be implied in instruments of a like nature."

214 Because Lot 1 is land under Torrens title Mr Venn submits s 41 applies with the consequence that the executed transfer was not effectual to pass legal title from Delta Electricity to the Minister until it was registered on 10 February 2009.

215 The plaintiff demurs, submitting that the executed transfer is evidence of the underlying agreement for sale of the land described in the transfer between Delta Electricity and the Minister and the completion of that agreement by the payment by the Minister of the consideration to Delta Electricity and the delivery by Delta Electricity of the Certificates of Title to the Minister. The plaintiff submits that either the executed transfer or the contractual transaction that lay behind the transfer conferred upon the Minister an equitable claim, interest or right to Lot 1 recognised by the law: Barry v Heider (1914) 19 CLR 197 at 208, 216; and see also Corin v Patton [1990] HCA 12; (1990) 169 CLR 540 at 560, 563. The Minister obtained equitable titles to the lands the subject of the transfer, including Lot 1, upon payment for value and the arming of the Minister with all that was necessary to perfect legal title (which included the executed transfer and the Certificates of Title): Watt v Lord [2005] NSWSC 53 at [55]. The execution and delivery of the transfer and the delivery of the Certificate of Title enabled the Minister to procure the vesting of the legal title in himself by lodging the transfer with the Registrar General: Corin v Patton at 560.

216 Such an equitable claim, interest or right can arise notwithstanding s 41 of the Real Property Act. The executed transfer operated as a command to the Registrar General to alter the register to record the Minister as the proprietor of the lands, the subject of the transfer.

217 So much may be accepted. But the problem for the plaintiff is that s 41(1) requires registration of a dealing before an effectual passing of legal title. Whalan, The Torrens System in Australia , (1982) LawBookCo at 155 notes:

"although no statutory estate passes until registration of an instrument, rights are created in equity, and the act of registration merely completes the legal title in which the equitable rights, which exist inter partes, merge."

218 The concept of acquisition of land requires the passing of not only an equitable estate or interest, but also of the legal title. For the land to be acquired by the Minister under Part 11 of the Parks Act, it will not be sufficient for the Minister to have obtained equitable title, he must have obtained the legal title as well. But legal title will not pass until registration. Hence, until the transfer was registered, ultimately on 10 February 2009, there was no passing of the legal title to the lands the subject of the transfer, including Lot 1, to the Minister and Delta Electricity remained at law the owner of the land. The consequence was that at the time of Mr Venn's conduct in May 2007 to July 2008, Lot 1 was not land "acquired under Part 11" of the Parks Act.

Land reserved

219 The other land to which s 156A(1) of the Parks Act applies is land "reserved" under the Parks Act. Section 30A empowers the Governor, by notice published in the Gazette, to reserve land as, amongst other categories of protected areas, a nature reserve (s 30A(f)).

220 On 21 February 2007, the Governor reserved Lot 1, amongst other lands as Colongra Swamp Nature Reserve. Notice of the reservation was published in the Government Gazette of 28 February 2007.

Land eligible to be reserved

221 Section 30B relevantly provides:

"Land may only be reserved under this Division if it is:

(b) lands of the Crown, or

(c) land acquired under section 145, 146 or 148".

222 Mr Venn submits that, at the time of reservation as a nature reserve, Lot 1 did not meet the description of either "lands of the Crown" or "land acquired under section 145, 146 or 148".

Land acquired under s 145

223 As to the latter category of land, the reason is the same as Mr Venn submitted earlier, namely, Lot 1 was not acquired under s 145 until registration of the transfer and that did not occur until 10 February 2009, just under 2 years after the purported reservation of lands including Lot 1 on 28 February 2007. Hence, Lot 1 was not eligible under s 30B(c) to be reserved as a nature reserve. I agree with this submission for the reason I have given earlier.

Lands of the Crown

224 As to the former category of land, "lands of the Crown" are defined in s 5 of the Parks Act to mean "lands vested in a Minister of the Crown or in a public authority."

Lands vested in a Minister

225 The plaintiff claims, firstly, that the execution and delivery of the transfer and the delivery of the Certificate of Title effected a vesting of Lot 1 in the Minister. Mr Venn disputes this, submitting that, just as with the acquisition of land, land does not vest in the Minister until the transfer of the land is registered. I agree with this submission.

226 Estates or interests are "vested". Hence, a person may be vested in an equitable estate or interest or vested in a legal estate or interest. The execution and delivery of the transfer of Torrens title land and the delivery of the Certificate of Title for the land clothes or vests the person with an equitable estate but not the legal estate in fee simple itself. Only upon registration of the transfer will the legal estate pass.

227 The statutory definition of lands of the Crown does not speak of an estate or interest in the land vesting but rather of the land vesting in the Minister of the Crown. This is, strictly speaking, incorrect as a person holds or is seised of an estate, such as an estate in fee simple, in the land rather than owning the land as such. Nevertheless, for "land" to vest in a person, the legal estate must vest in the person; it is insufficient for merely an equitable estate to vest.

228 The result in this case is that, at the time of reservation of Lot 1 as a nature reserve, Lot 1 had not vested in the Minister. Lot 1 was, therefore, not lands of the Crown by being land vested in the Minister.

Lands vested in a public authority

229 The plaintiff's alternative submission is that, if the executed and delivered transfer and Certificate of Title to Lot 1 was not sufficient to effect a vesting of Lot 1 in the Minister, Lot 1 still must have been vested in Delta Electricity. The plaintiff submits that Delta Electricity is a public authority. Hence, the plaintiff submits, Lot 1 was lands of the Crown because Lot 1 was vested in a public authority. Mr Venn contests that Delta Electricity is a public authority.

230 "Public authority" is defined in s 5 of the Parks Act to mean "a public or local authority constituted by or under an Act, a Government Department or a statutory body representing the Crown." The plaintiff relies on Delta Electricity being "a public ... authority constituted by or under an Act".

231 There is no doubt that Delta Electricity is "constituted by or under an Act". Delta Electricity was one of a number of corporations constituted by the Energy Services Corporations Act 1995. Section 4 of that Act (which commenced on 1 March 1996) established electricity generators. It constituted Delta Electricity as a corporation under that name (s 4(a)) and included Delta Electricity as a State Owned Corporation under the State Owned Corporations Act 1989 (s 4(b)).

232 The critical question, however, is whether Delta Electricity is a "public authority" so constituted. The plaintiff submits that Delta Electricity is a public authority on the following bases:

"(a) W ords and Phrases Legally Defined 3 rd edition Vol O-R pages 461-2 incorporating Halsbury's Laws (4 th ed, paragraph 6) describes a public authority as 'a person or administrative body entrusted with functions to perform for the benefit of the public and not for private profit'. The definition goes on to state that 'Not every such person is expressly defined as a public authority or body and the meaning of a public authority may vary according to statutory context'.

(b) The most recent case in which an appellate court has considered the meaning of "public authority" is Federal Commissioner of Taxation v Bank of Western Australia Limited (1995) 133 ALR 599. The Court considered the term as a term of general application, as well as in the context of the statute relevant to that case. Hill J provided the main judgment in the case and listed a number of propositions which, in his view, could be derived from the previous case law (at 618-9):

(i) A question of whether a particular entity is an authority will be a question of fact and degree dependent on all the circumstances of the case ( Western Australian Turf Club v FCT (1978) 139 CLR 288 per Stephen J with whom Barwick CJ agreed). No one factor will be determinative, but rather a range of considerations should be considered ( Committee of Direction of Fruit Marketing v Australian Postal Commission ) (1979-80) 144 CLR 577 at 580).

(ii) A private body, corporate or unincorporated, established for profit with not be an authority ( Renmark Hotel Inc v FCT (1949) 79 CLR 10 at 17 per Rich J, Federal Commissioner of Taxation v Silverton Tramway (1935) 88 CLR 559 per Dixon CJ at 566).

(iii) Incorporation by legislation is not necessary before a body may be regarded as an authority ( Renmark Hotel at 19, Western Australian Turf Club at 293).

(iv) For a body to be an authority of a State or of the Commonwealth, the body in question must be an agency or instrument of government set up to exercise control or execute a function in the public interest. It must be an instrument of government existing to achieve a government purpose ( Fruit Marketing at 580).

(v) The body in question must perform a traditional or inalienable function of government and have governmental authority for so doing ( Renmark Hotel at 16, General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 134, Re Anti-Cancer Council of Victoria; Ex parte State Public Services Federation (1992) 175 CLR 442).

(vi) It is not necessary for the person or authority to have coercive powers, whether of an administrative or legislative character ( Renmark Hotel at 19). Conversely, the fact that a person or body has statutory duties or powers will not of itself be sufficient to characterise the person or body as an authority ( Western Australian Turf Club at 297).

(vii) At least where the question is whether a body is a "public authority" the body must exercise control power or command for the public advantage or execute a function in the public interest ( Silverton Tramway at 565, 567). The central concept is the ability to exercise power or command ( Fruit Marketing case at 580).

(c) The factors to be considered then, it is submitted, are:

(i) whether the body has been entrusted with functions to be performed for the benefit of the "public" and not for private profit;

(ii) whether the body has "public" or statutory duties to perform;

(iii) whether the body has "some governmental authority";

(iv) has the body exceptional powers to do what an ordinary individual might not do;

(v) the process of characterisation is an negative one - that is, the features of the body which are alien to the concept of "public authority" should be identified, and then the weight of those features should be assessed.

(d) Sections 20E and 20F of the SOC Act suggest that SOCs are intended to operate as commercial enterprises but with aspects of maximising the worth of the State's investment in it, exhibiting a sense of social responsibility, conduct its operations in accordance with ecologically sustainable development, exhibiting a sense of responsibility towards regional development and decentralization. SOCs are stated to "not represent the State", not exempt from rates, taxes and so on, and cannot render the State liable for debts, liabilities etc.

(e) The ESC Act provides that Delta is an "electricity generator". Section 6(2) states that its principle functions are to establish, maintain and operate facilities for the generation of electricity and other forms of energy, and to supply electricity and other forms of energy to other persons and bodies.

(f) Delta's principle objectives are to operation efficient safe and reliable facilities for the generation of electricity, to be an efficient and responsible supplier of electricity, and to be a successful participant in the wholesale market for electricity." (Plaintiff's submissions of 27 May 2011).

233 Mr Venn, on the other hand, submits that Delta Electricity is not a public authority on the following bases:

"75. Delta is a corporation or statutory owned corporation (statutory 'SOC') listed under Schedule 5 of the State Owned Corporations Act 1989 (the 'SOC Act'), pursuant to Sections 3, 20A and 20B by its insertion [in] the list in Schedule 5 of that Act (refer under tab 40, Venn-01).

76. Delta was intended to be and is a public company limited by shares and accountable by way of its Board under the ordinary laws of commerce that apply in the private sector for: refer last line, par. 3; page 1; the Second Reading Speech under tab 38, Venn-01.

77. Delta's principal objective is to operate as a 'successful business': section 20E (p.9, tab 40). It is free from ministerial intervention except in their capacities as voting shareholders or in the transfer of assets, liabilities etc from a public authority to Delta (s.20D) (p.8, tab 40). It has the same regulatory scheme as companies in the private sector (eg) being subject to the federal trade practices and state fair trading legislation (par.4, p. 1, tab 40).

78. Delta is stated to be a public authority by way of specific exception only : which exceptions, the respondent submits establish that Delta is a corporation and not a statutory body representing the Crown or a public authority for any purpose other than as expressly stated, which exceptions do not include the purposes of the NPW Act.

79. That is, Delta is stated to be a public authority for the purposes (only) of the Independent Commission Against Corruption Act 1988 (s.36) (p.1, tab 40) and a statutory body for the purposes (only) of Part 3 of the Public Finance and Audit Act 1983 and the Annual Report (Statutory Bodies) Act 1984 (s.24A) (p.7, tab 40). It is exempted from the industrial laws (s.36) (p.11, tab 40).

80. Further Delta is expressly stated to be a corporation: it is not stated to be a public authority, or a statutory body representing the Crown, as was its predecessor, Pacific Power in section 5 of the Electricity (Pacific Power) Act 1950 (refer pp. 2-4, tab 41, Venn-01). And as such it does not have the status, privileges and immunities of the Crown as do statutory bodies (that is, public authorities, as defined under s.5, NPW Act): refer ss. 13A and 50, Interpretation Act 1987 at p.1, tab 42." (Respondent's submissions of 19 May 2011).

234 The question whether Delta Electricity is a public authority is a question of fact and degree dependent upon all the circumstances of the case. There must be an evaluation of the factors or features in favour of and against a characterisation as a public authority: Western Australian Turf Club v Commissioner of Taxation of the Commonwealth of Australia (1978) 139 CLR 288 at 297; Commissioner of Taxation v Bank of Western Australia Ltd (1995) 61 FCR 407 at 429-431; (1995) 133 ALR 599 at 618, 619.

235 The factors pointing in favour of Delta Electricity being characterised as a public authority are:

(a) Delta Electricity, along with two other corporations constituted under the Energy Services Corporations Act, are the means adopted by the NSW Government for the carrying on by it of the business of electricity generation under the Energy Services Corporations Act (s 4 and Pt 1 of Schedule 1). Delta Electricity is an energy services corporation, the shares of which can only be held by eligible Ministers of the government (s 11(1) of the Energy Services Corporations Act and see also s 20H(5) of the State Owned Corporations Act). Delta Electricity is a statutory State Owned Corporation (s 4(b) of the Energy Services Corporations Act and s 20A(1) and Schedule 5 of the State Owned Corporations Act). In this sense, Delta Electricity can be seen as the agent or instrument of the government which controls it.

(b) The business of electricity generation has historically been a function of government, although not an exclusive or inalienable function of government. Historically in Australia, electricity generators have been public utilities, but this is not the case in other countries, such as the United States, or in recent times in Australia where private corporations carry on the business of electricity generation. Electricity is now generated from a variety of sources by the private sector.

(c) Delta Electricity has statutory authority for carrying on its electricity generation business (s 6 of the Energy Services Corporations Act).

(d) Three of the many principal objectives of Delta Electricity do not relate to being a successful commercial business, namely: exhibiting a sense of social responsibility by having regard to the interests of the community in which Delta Electricity operates (s 5(1)(a)(iii) of the Energy Services Corporations Act); protecting the environment by conducting its operations in compliance with the principles of ecological sustainable development (s 5(1)(b) of the Energy Services Corporations Act); and exhibiting a sense of responsibility towards regional development and decentralisation in the way in which Delta Electricity operates (s 5(1)(c) of the Energy Services Corporations Act). However, these are not exclusive or inalienable objectives of government; corporations in the private sector can also operate in a socially responsible and ecologically sustainable manner in accordance with these objectives.

236 The factors that work against Delta Electricity being characterised as a public authority are:

(a) Delta Electricity is not an instrument of government existing to achieve some government purpose: Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission (1980) 144 CLR 577 at 580; Commissioner of Taxation v Bank of Western Australia Ltd at 429; 618. The generation of electricity is not a government purpose.

(b) Delta Electricity is not authorised to exercise power or command, a central concept of an authority or public authority: Federal Commissioner of Taxation v Silverton Tramway Co Ltd (1953) 88 CLR 559 at 565; Commissioner of Taxation v Bank of Western Australia Ltd at 618. Delta Electricity is not given by the State, "the power to direct or control the affairs of others on behalf of the State - i.e. for the purposes of and in the interests of the community or some section of it": Committee of Direction of Fruit Marketing v Delegate of the Australian Postal Commission at 580.

(c) Delta Electricity has no power or authority exceptional or additional to that which an ordinary private corporation would have and no greater authority to conduct the business of an electricity generator than any other person: Renmark Hotel Inc v Federal Commissioner of Taxation (1949) 79 CLR 10 at 18, 23; Western Australian Turf Club v Commission of Taxation of the Commonwealth of Australia (1978) 139 CLR 288 at 311; Commissioner of Taxation v Bank of Western Australia Ltd at 430; 618-619.

(d) A number of the principal objectives of Delta Electricity concern operating a successful commercial business in the relevant wholesale market for electricity, including to be a successful business and, to this end, to operate at least as efficiently as any comparable businesses and to maximise the net worth of the State's investment in Delta Electricity: (s 5(1)(a)(i) and (ii) of the Energy Services Corporations Act); to operate efficient, safe and reliable facilities for the generation of electricity (s 5(1)(d) of the Energy Services Corporations Act); to be an efficient and responsible supplier of electricity (s 5(1)(e) of the Energy Services Corporations Act); and to be a successful participant in the wholesale market for electricity (s 5(1)(f) of the Energy Services Corporations Act). The concept of an "authority" or "public authority" is not readily applied in ordinary speech to a corporation carrying on an undertaking for private profit, even if the undertaking is a public utility and the corporation has secured a grant of statutory powers to be enabled to do so: Federal Commissioner of Taxation v Silverton Tramway Co Ltd at 566-567; Commissioner of Taxation v Bank of Western Australia Ltd at 429; 618.

(e) The portfolio Minister for Delta Electricity is given power to direct Delta Electricity to perform non commercial activities (namely activities which the board of Delta Electricity considers are not in the commercial interests of Delta Electricity) (s 20N of the State Owned Corporations Act); to notify Delta Electricity of a public sector policy that is to apply to Delta Electricity (s 20O(1) of the State Owned Corporations Act) and the Board of Delta Electricity is to ensure that the policies are carried out by Delta Electricity (s 20O(2) of the State Owned Corporations Act); and to comply with a direction in the public interest (s 20P of the State Owned Corporations Act). The existence of powers to give such directions and notifications to Delta Electricity emphasises that it is the exception and not the rule for Delta Electricity to perform non commercial activities, carry out public sector policies and otherwise act in the public interest. For this reason, if any such direction or notification is given, Delta Electricity is entitled to be reimbursed, from money advanced by the Treasurer or appropriated by Parliament for the purpose, for the estimated net cost of complying with the direction or notification or the estimated net revenue foregone through complying with the direction or notification (s 20N(3) and (5), s 20O(4) and s 20P(4) of the State Owned Corporations Act).

(f) Delta Electricity, as a statutory State Owned Corporation, does not enjoy the benefits and immunities of a public authority, except where expressly stated in the statute. Thus:

• Delta Electricity is not and does not represent the State except by express agreement with the voting shareholders of Delta Electricity (s 20F(a) of the State Owned Corporations Act);
• Delta Electricity is not exempt from any rate, tax, duty or other impost imposed by or under any law of the State merely because it is a State Owned Corporation (s 20F(b) of the State Owned Corporations Act);
• Delta Electricity cannot render the State liable for any debts, liabilities or obligations of Delta Electricity (s 20F(c) of the State Owned Corporations Act);
• Delta Electricity is required to pay to the Treasurer for payment into the Consolidated Fund such amounts as the Tax Assessor determines to be equivalent to the amounts that would be payable by Delta Electricity if it were liable to pay taxes under the law of the Commonwealth (s 20T(1) of the State Owned Corporations Act);
• the obligations of Delta Electricity are not guaranteed by the State of NSW, except to the extent that the board and the voting shareholders of Delta Electricity agree in writing (s 20U(1) of the State Owned Corporations Act).

(g) For purposes of certain statutes only, Delta Electricity is taken to be a statutory body (eg under the Public Finance and Audit Act 1983 and the Annual Reports (Statutory Bodies) Act 1984 in relation to annual reports and financial reports: see s 24A(1) and (2) of the State Owned Corporations Act); an authority of the State (for the purposes of Pt 4 of the Public Finance and Audit Act: s 28(2) of the State Owned Corporations Act); a public authority (eg for the purposes of the Independent Commission Against Corruption Act 1988: s 36(2) of the State Owned Corporations Act); or a determining authority (for the purposes of Pt 5 of the Environmental Planning and Assessment Act 1979: s 37A(4) of the State Owned Corporations Act). The existence of these express provisions giving Delta Electricity a characterisation as a form of public authority or authority of the State, if only for limited purposes, points against Delta Electricity otherwise and more generally having that characterisation.

237 On balance, the factors against characterisation as a public authority are more numerous, persuasive and important than those in favour: see Western Australian Turf Club v Commissioner of Taxation of the Commonwealth of Australia at 297. In particular, the lack of ability of Delta Electricity to exercise power or command, which is the central concept of a public authority, is important: Federal Commissioner of Taxation v Bank of Western Australia Ltd at 430-431; 619.

238 As a result, Delta Electricity is not a public authority and Lot 1, if it was still vested in Delta Electricity at the time of reservation of Colongra Swamp Nature Reserve, was not land vested in a public authority. Hence, Lot 1 was not, at the time of reservation, "lands of the Crown" under either limb of the definition and was not eligible under s 30B(b) to be reserved as a nature reserve under s 30A(1) of the Parks Act.

Concurrence of public authority to reservation

239 Mr Venn also made an alternative submission in the event that the Court found, contrary to his primary submission, that Lot 1 was "lands of the Crown". This alternative submission was that, if Lot 1 was vested in Delta Electricity as a public authority, and hence was "lands of the Crown", s 30C(a) of the Parks Act would have required, before Lot 1 could be reserved as part of a nature reserve, the concurrence in writing of Delta Electricity to Lot 1 being so reserved. Mr Venn submits that no such concurrence in writing was obtained before the reservation of Colongra Swamp Nature Reserve. As this limitation or reservation was not complied with, Mr Venn submits that the reservation was ineffectual in respect to Lot 1.

240 The plaintiff submits that, although there was no document in which Delta Electricity expressly gave concurrence to lands vested in it, including Lot 1, being reserved as a nature reserve, the correspondence between Delta Electricity and the Minister permits the inference to be drawn that Delta Electricity granted its concurrence to the reservation of lands, including Lot 1, as a nature reserve.

241 In my view, the correspondence and documentation of the Minister and Delta Electricity do not allow an inference to be drawn that Delta Electricity concurred to its land, including Lot 1, being reserved without the necessity of acquisition by either agreement or compulsory process under the Land Acquisition (Just Terms Compensation) Act 1991. To the contrary, the Minister and Delta Electricity both considered that the lands would first be acquired from Delta Electricity by the Minister and only then reserved by the Minister as a nature reserve. Hence, Delta Electricity never turned its mind to giving concurrence, and could not implicitly have concurred, under s 30C of the Parks Act to the reservation of Lot 1 as a nature reserve without prior acquisition by the Minister from Delta Electricity. This is revealed from a consideration of the bundle of documentation tendered by the plaintiff in relation to the issue of concurrence under s 30C of the Parks Act (Exhibit L), supplemented by the documents tendered by Mr Venn (Exhibit 4).

242 On 12 August 2002, the Minister agreed with a recommendation that he "approve in principle the transfer of the subject lands [including Lot 1] from Delta Electricity to the Minister for the Environment for reservation as the Colongra Swamp Nature Reserve" (Exhibit L, p 5).

243 On 3 October 2002, Mr Couch of NPWS wrote to Mr Koeller, Commercial Manager - Central Coast, Delta Electricity, advising that the NPWS is willing to accept the transfer of lands from Delta Electricity for formal reservation as the Colongra Swamp Nature Reserve and nominating Mr Shanahan, the Manager of the NPWS Conservation Management Unit, as the contact officer for the actual transfer of title of the lands (Exhibit 4, p 1).

244 On 14 February 2003, Mr Koeller of Delta Electricity agreed with Mr Shanahan of NPWS that "the lands to comprise the new reserve at Colongra [which included Lot 1] ... were to be transferred to the Minister for reservation" (Exhibit L, p 6).

245 On 3 March 2003, Delta Electricity's solicitors, Acuiti Legal, sent a letter to NPWS recounting a conversation that one of the solicitors, Mr Hayes, had had with Mr Heinecke of NPWS on 21 February 2003 about the reservation of lands owned by Delta Electricity (including Lot 1) as a nature reserve and Mr Hayes' indication that the lands may be reserved as a nature reserve by gazettal notification. Mr Hayes advised that NPWS should seek its own legal advice on this matter. A subsequent handwritten note on the letter by Mr Shanahan of NPWS records that Mr Heinecke had a discussion with Mr Hayes on 3 March 2003 where Mr Hayes "(finally) agreed that we can't go ahead and reserve without title transfer. He [Mr Hayes] asked if we would fax him a copy of the title searches (for all parcels) and he will initiate the transfer dealing" (Exhibit L, p 9).

246 Later on the same day, 3 March 2003, Acuiti Legal wrote to Mr Heinecke of NPWS referring to Mr Hayes' telephone conversation with Mr Shanahan and confirming Mr Shanahan's advice that "it is NPWS' position that all the land to be transferred from Delta to NPWS is Torrens title" and "the land should be transferred pursuant to a Transfer form signed by Delta and the Minister for the Environment and lodged with Land & Property Information NSW." The solicitor then stated "[o]n this basis I have prepared and forwarded a Transfer to Delta Electricity to be executed. The Transfer will grant the conveyance of the land under Torrens title from Delta to NPWS." The land specified included Lot 1. The solicitor stated that another two Lots were Crown land and the NPWS will need to prepare a Gazette to acquire the Crown land (Exhibit L, pp 7-8).

247 These discussions and correspondence clearly establish that the option of direct reservation of the Torrens title land, including Lot 1, while they were still owned by Delta Electricity (which would have required Delta Electricity's concurrence in writing under s 30C of the Parks Act) was considered but rejected by the parties in favour of the alternative option of transfer of the lands from Delta Electricity to the Minister.

248 On 25 March 2003, Acuiti Legal wrote to Mr Shanahan of NPWS enclosing the Transfer executed on behalf of Delta Electricity and advising that Mr Shanahan will need to undertake the following:

" Â· Arrange for the execution of the Transfer on behalf of the Minister for the Environment.

· Arrange for the stamping of the Transfer.

· Prepare and gazette the notification of the acquisition of the Crown land [being those lots which were to be acquired by compulsory process]."

249 The solicitor requested Mr Shanahan when these tasks had been completed to contact Mr Hayes "to arrange a time for the production of the relevant Certificates of Title for the registration of the Transfer at Land & Property Information NSW" (Exhibit L, p 11).

250 On 20 October 2003, Acuiti Legal wrote to Mr Shanahan of NPWS enclosing for execution by the Minister for the Environment a Deed of Agreement effecting the compulsory acquisition by the Minister from Delta Electricity of the Crown lands as well as a Transfer of the Torrens title lands (which included Lot 1) (Exhibit L, p 12).

251 On 22 December 2003, Mr Shanahan of NPWS responded by letter to Acuiti Legal's letter of 20 October 2003, stating:

"I wish to confirm that the transfer and deed of agreement are in order and that these have been submitted for signing by the Acting Director General of the Department.

In line with our discussion this morning, the Department will advise you of the intended date for the registration of the Transfer and you will arrange for the original titles of the land, the subject of the transfer dealing to be produced at Land and Property Information" (Exhibit L, p 16).

252 On 19 August 2004, Mr Shanahan of the NPWS wrote to Acuiti Legal advising that the Acting Director-General of the Department, as delegate for the Minister, had signed the Transfer relating to the land for which Delta Electricity had clear title and enclosed the Transfer. Mr Shanahan requested, in line with the recent discussion with Mr Koeller of Delta Electricity, for Acuiti Legal to "arrange for lodgement of the transfer and the production of titles at Land and Property Information NSW to effect the transfer of titles to the Minister." He also enclosed the signed Deed of Agreement in relation to the Crown lands proposed for acquisition by the Minster by compulsory process (Exhibit 4, p 2).

253 On 3 May 2005, Mr Shanahan of the NPWS wrote to Delta Electricity requesting advice of the current status of the transfer of land to the Minister. He referred to his letter of August 2004 to Acuiti Legal, which enclosed the signed Transfer for the Torrens title lands for which Delta Electricity had clear title and the signed Deed of Agreement for the Crown lands proposed for acquisition by compulsory process. Mr Shanahan noted that DECCW had not received a response from Acuiti Legal nor has the transfer of title occurred. He requested Delta Electricity to investigate the cause of delay in the transfer of title as DECCW was keen to progress the reservation of Colongra Swamp Nature Reserve (Exhibit 4, p 4).

254 On 13 May 2005, Middletons Lawyers, who had succeeded Acuiti Legal as Delta's solicitors, wrote to Mr Shanahan of NPWS requesting advice as to the status of the gazettal of the acquisition notice in respect of Crown lands to be compulsorily acquired and the registration of the Transfer of the Torrens title land (Exhibit 4, p 5).

255 On 1 February 2007, Middletons Lawyers wrote to Mr Demetriou of the Crown Solicitors' office enclosing the Certificates of Title for the various lands including Lot 1 and confirming "that you will now proceed to lodge the Transfer in respect of the above titles and the Resumption Application with the Department of Lands" and requesting advice when the Transfer and Resumption Application have been registered (Exhibit L, p 26).

256 On 7 February 2007, the Minister agreed with the recommendation in a Departmental Briefing Note that lands (including Lot 1) be reserved under s 30A(1) and (2) of the Parks Act as Colongra Swamp Nature Reserve. The Briefing Note had stated as "Background" that:

"The area shown by red hatching in the diagrams attached (Tab A) has been acquired under Part 11 of the National Parks and Wildlife Act. The acquisition approval has been attached (Tab B). The land totals about 112 hectares in area and can be reserved under the section 30 [sic, s 30A] of the Act, as Colongra Swamp Nature Reserve" (Exhibit L, p 22).

257 The Minister, therefore, approved the reservation of the lands (including Lot 1) as a nature reserve on the basis that the land had already been acquired under Part 11 of the Parks Act from Delta Electricity, not that they were still vested in Delta Electricity.

258 Accordingly, if the Torrens title lands including Lot 1 were still vested in Delta Electricity because the transfer had not been registered and if Delta Electricity could be said to be a public authority, the concurrence in writing of Delta Electricity under s 30C to these lands being reserved as a nature reserve needed to be obtained, but had not been obtained, before the lands were so reserved. The condition precedent in s 30C of the Parks Act was, therefore, not satisfied and the lands were precluded from being reserved under s 30A as a nature reserve.

259 The ultimate result of the foregoing discussion is that the plaintiff has not established that Lot 1 was effectually reserved under the Parks Act as a nature reserve. At the time of reservation on 21 February 2007, with gazettal on 28 February 2007, Lot 1 was neither "land acquired under s 145" within s 30B(c) nor "lands of the Crown" within s 30B(b) nor any other eligible category of land under s 30B, and hence was not land that may be reserved under Division 1 of Part 4 of the Parks Act. Alternatively, if Delta Electricity could be said to be a public authority, because Lot 1 was still at the time of reservation vested in Delta Electricity, its concurrence in writing to reservation would have been needed under s 30C but was not obtained before reservation of Lot 1 as part of the nature reserve.

260 This ineffectual reservation of Lot 1 as a nature reserve was not cured by the time of Mr Venn's conduct between May 2007 and July 2008. Hence, Mr Venn's conduct of damaging or removing vegetation, soil, sand or similar substances at that time was not carried out on "land reserved under this Act" and hence was not in breach of this limb of s 156A(1) of the Parks Act.

Conclusion on breach of s 156A(1)

261 The plaintiff has not established that Mr Venn's conduct of clearing and filling on Lot 1 between May 2007 and July 2008 was in breach of s 156A(1) of the Parks Act because the plaintiff has not established that, at that time, Lot 1 was either land reserved under the Parks Act or land acquired under Part 11 of the Parks Act.

THREATENED OR APPREHENDED BREACHES OF S 118A AND S 156A

262 The discussion to this point has been on whether Mr Venn's conduct of clearing and filling Lot 1 in the period of May 2007 to July 2008 was in breach of s 118A and/or s 156A of the Parks Act. I have concluded that Mr Venn's conduct, at that time, was in breach of s 118A but not s 156A. However, a breach of the Parks Act is not restricted to a breach that has already occurred; it includes "a threatened or apprehended breach": s 193(4) of the Parks Act.

263 The evidence establishes that Mr Venn did not complete all of the clearing and filling of Lot 1 that he had planned. Mr Bruce recounts that when he first met with Mr Venn on-site in April 2007, they walked up to the old rickety fence (near the boundary of Lot 3 of DP 102487). When they were in that area Mr Venn said "if you clear all of this for me, you can bring as much fill in as you want". Mr Venn told Mr Bruce "he wanted the area from the existing lawn area to the Old Rickety Fence cleared and brought up to the same level and dressed with topsoil." (Bruce affidavit of 4 March 2009, paras 33 and 34).

264 When Mr Venn met the officers from Wyong Shire Council, Mr Adrian Hall and Mr Rod Mergan, on 4 May 2007 before the major part of the clearing and filling had occurred, Mr Venn indicated he intended to fill: in width, from the water's edge back to a natural rise or slope about 20-30 metres from the water's edge; in depth, to the existing level of the lawn area that had been previously filled on Lot 2; and in length, from the lawn area to the old fence line near the boundary between Lot 1 and Lot 3 of DP 1029487 to the north west. (Hall affidavit of 5 March 2009, paras 13 and 14 and Mergan affidavit of 5 March 2009, paras 17-19).

265 Mr Venn himself said "I have not completed the planned Work on the Land" (Venn second affidavit of 11 May 2011, para 47).

266 Mr Venn stopped work part way through because of the discovery and action taken by the plaintiff. Although Mr Venn stopped work, he declined to give an undertaking to stop clearing vegetation, depositing fill on or removing soil from Lot 1. The plaintiff, in its letters of 30 March 2010 and 18 May 2010 had requested Mr Venn give an undertaking to stop clearing vegetation, depositing fill and removing soil. Mr Venn's solicitor's letter of 14 April 2010 (Venn's second affidavit 11 May 2011, Tab 37, p 4) in response to the plaintiff's letter of 30 March 2010 requesting an undertaking, denied Mr Venn was in breach of the Parks Act, outlined Mr Venn's reasons for undertaking the clearing and filling work, but did not offer any undertaking to stop such work. Mr Venn's solicitor's letter of 21 May 2010 (Venn's second affidavit, Tab 37, p 13), in response to the plaintiff's letter of 18 May 2010, again seeking an undertaking, continued to deny that Mr Venn's conduct was in breach of the Parks Act, asserted that Mr Venn was the possessory owner of Lot 1 and requested that the NPWS work cooperatively with Mr Venn in rehabilitating the subsidence damage done to Lot 1.

267 On 12 October 2010, the plaintiff's solicitor noted that a representative of the plaintiff had invited Mr Venn to meet to discuss the damage and Mr Venn's use of the land comprising the nature reserve and ways of resolving the plaintiff's concerns. The plaintiff's solicitor noted that Mr Venn's solicitor had advised that Mr Venn did not agree to the plaintiff's request for a meeting (Exhibit K).

268 In oral evidence at the hearing, in answer to a question on 24 May 2011, Mr Venn agreed that, if there were not a court order restraining him, it was his present intention to continue clearing and filling Lot 1 in order to complete the planned works. Mr Venn in fact has continued to enter upon Lot 1 and to mow the cleared areas of Lot 1 and other grassed areas (see for example Venn second affidavit, para 51).

269 A few days after Mr Venn gave evidence in court expressing his intention to continue his planned work of clearing and filling Lot 1, he prepared and tendered to the Court a letter dated 27 May 2011 in which he said he undertakes "in the event the Court finds that Lot 1 in Deposited Plan 509889 is a part of a nature reserve or an endangered ecological community of the kind alleged not to do any further work on or cause harm to or pick plants from Lot 1 in DP 509889" (Exhibit 3).

270 Notwithstanding this letter, Mr Venn's solicitor continued to oppose the Court making orders restraining Mr Venn from carrying out activities on Lot 1 or requiring Mr Venn to do works, such as surveying and fencing along the common boundary between Lot 1 and Lot 2 as this might prevent Mr Venn's use and occupation of Lot 1, or rehabilitating or restoring Lot 1 as damaged by the clearing and filling works. Mr Venn expresses his wish to use and occupy Lot 1.

271 Mr Venn's expressed intentions in relation to using and occupying Lot 1 and non acceptance of orders of both a positive and negative nature in relation to Lot 1 gives rise to a threatened or apprehended breach of both s 118A(2) as well as s 156A(1) of the Parks Act.

272 The retention of the fill placed on Lot 1 as well as the continuation of mowing and use of the cleared and filled area of Lot 1 continues to cause picking (in the defined sense) of plants of the endangered ecological communities of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest. Any future clearing or filling of Lot 1 would also pick plants of those endangered ecological communities. Hence, these actions would be threatened or apprehended breaches of s 118A(2) of the Parks Act.

273 The threatened or apprehended breach of s 156A(1) arises because, upon registration of the transfer of the Torrens title land, including Lot 1, from Delta Electricity to the Minister on 10 February 2009, Lot 1 was "acquired under Part 11" of the Parks Act by the Minister. Hence, any future damage or removal of vegetation, soil, sand, stone or similar substances will be on land acquired under Part 11 and hence in breach of s 156A(1). It does not matter that Lot 1 might not have been effectually reserved under the Parks Act as a nature reserve because land reserved under the Parks Act is only one of the two types of land to which s 156A(1) applies, the other being the land acquired under the Part 11 of the Parks Act.

274 Accordingly, the retention of the fill placed on Lot 1 as well as the continued mowing and use of the cleared and filled area of Lot 1 continues to cause damage and removal of vegetation, soil, sand or similar substances. Any future clearing of filling of Lot 1 would also cause such damage or removal. Hence, these actions would be threatened or approached breaches of s 156A(1).

ORDERS TO REMEDY AND RESTRAIN PAST AND THREATENED BREACHES

275 At the hearing, the plaintiff amended the terms of the orders it requested the Court to make to remedy or restrain breaches of s 118A(2) and s 156A(1) of the Parks Act. The orders sought fell into three categories:

• a declaration that Mr Venn had breached s 118A and s 156A of the Parks Act;
• an order restraining Mr Venn from taking certain actions on Lot 1; and
• orders requiring Mr Venn to take certain actions.

Declaration

276 The plaintiff seeks a declaration that Mr Venn has breached s 118A and s 156A of the Parks Act if the Court so finds. The plaintiff submitted that the circumstances of the case make it appropriate for the Court to make a declaration that Mr Venn has breached relevant provisions of the Parks Act. The circumstances of this case are distinguishable from those in Great Lakes Council v Lani (2007) 158 LGERA 1 where a declaration of breach of statute was not made. Instead, they are more closely aligned with the circumstances in Council of the City of Sydney v Mae [2009] NSWLEC 84; Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127; and Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6.

277 Mr Venn opposed the Court making a declaration of breach.

278 I agree with the plaintiff that the circumstances of this case make it appropriate for the Court to make a declaration that Mr Venn has breached s 118A(2) of the Parks Act. Having regard to the Court's finding, there should be no declaration as to breach of s 156A(1).

279 First, unlike in Great Lakes Council v Lani , the person in breach, Mr Venn, did not admit the breach and put in issue the critical elements of the breach. He denied that his conduct involved "picking", that the subject of the picking were "plants", and that any plants were part of any endangered ecological community. As I have found, these denials were in the face of overwhelming evidence establishing each of these elements of the breach. Mr Venn's belated letter to the Court offering an undertaking not to do further work on or cause harm to or pick plants from Lot 1 was made conditional upon the Court finding that Lot 1 is part of an endangered ecological community. In the circumstances of this case, it is not sufficient for there to be merely findings in the reasons for the judgment of the Court; the ultimate findings need to be reflected in a declaration that Mr Venn's conduct constituted a breach of s 118A(2) of the Parks Act by picking plants of the endangered ecological communities of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest.

280 Secondly, Mr Venn's conduct was part of, but he did not complete, his planned works of clearing and filling Lot 1. Both before and at the hearing, Mr Venn has expressed his desire to continue the planned works and to continue to use and occupy Lot 1 which would continue to cause picking of plants of the endangered ecological communities. There is a threatened or apprehended breach of s 118A(2). This continual nature of the breach makes it appropriate to make a declaration: Marrickville Council v Tanwar Enterprises Pty Ltd at [37].

281 Thirdly, having regard to the denial and defiance of Mr Venn in relation to picking plants of the endangered ecological communities on Lot 1 and the broader public interest in his conduct on Lot 1, it is appropriate for the Court to mark disapproval of the conduct by means of a formal declaration. In the circumstances, it is in the public interest that a declaration of breach be made by the Court to, "publicly expose and denounce on behalf of the community the unlawful behaviour" in which Mr Venn has engaged: Australian Securities and Investment Commission (ASIC) v Atlantic 3 Financial (Aust) Pty Ltd [2006] QSC 132 at [52]. As Pepper J said in Hill Top Resident Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) at [20];

"the making of the declarations marks the disapproval of the Court of conduct that Parliament has proscribed. It also serves to discourage others from acting in a similar way and may, therefore, be seen to have a deterrent and educative element. The granting of the declaration may accordingly be seen as advancing the regulatory objects of the EPAA (s 5 of the EPAA and Humane Society v Kyodo Senpaku [2006] FCAFC 116; (2006) 154 FCR 425 at [22]-[27])."

282 Similarly, in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [308] Stein JA, in determining that declarations should be made that mining activities causing environmental harm were in breach of relevant statutes, said that:

"There is a demonstrable purpose in making the declarations. They serve to declare the law and underline the breaches. They have utility and draw attention to the continuing environmental harm to the aquifer".

283 The last comment is equally applicable to the regulatory objects of the Parks Act in this case.

284 For these reasons I find it is appropriate to make a declaration that Mr Venn, in picking plants that were part of the endangered ecological communities of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest, breached s 118A(2) of the Parks Act.

Orders restraining breach

285 The plaintiff seeks a number of orders restraining Mr Venn from picking plants of the two endangered ecological communities on Lot 1; damaging or removing any vegetation, rock, soil, sand or similar substance from Lot 1; carrying out certain activities on Lot 1 including mowing, affixing signs and carrying on organised activities such as camping, canoeing, training and tree planting; and accessing Lot 1 from Lot 2 by vehicular means (except to carry out remedial orders that might be made by the Court).

286 Mr Venn opposed the restraining orders sought by the plaintiff. However, he did, late in the hearing, tender a letter to the Court in which he undertook, in the event that the Court finds that Lot 1 is a part of a nature reserve or an endangered ecological community of the kind alleged by the plaintiff, "not to do any further work on or cause harm to or pick plants from Lot 1 in DP 509889."

287 I consider that the Court should make an order restraining Mr Venn from carrying out specified actions which would be in breach of s 118A(2) and s 156A(1) of the Parks Act, rather than accept an undertaking from Mr Venn in the terms he offers.

288 First, once it has been established that there has been a significant breach of the Parks Act, as has been established with respect to s 118A(2), Mr Venn should be restrained from continuing such a breach: Woolworths Ltd v Campbells Cash and Carry Pty Ltd (1996) 92 LGERA 244 at 261; Woolworths Ltd v The Warehouse Group (Aust) Pty Ltd [2003] NSWLEC 31; (2003) 123 LGERA 341 at [19]-[20] upheld on appeal [2003] NSWCA 270; (2003) 137 LGERA 115 at [48]; and Meriton Apartments Pty Ltd v Sydney Water Corporation [2004] NSWLEC 699; (2004) 138 LGERA 383 at [19].

289 Although Mr Venn's conduct between May 2007 and July 2008 was not found to be in breach of s 156A(1) of the Parks Act because Lot 1 had not been reserved or acquired under the Parks Act at that time, since 10 February 2009 when the transfer of Lot 1 was registered, Lot 1 has been acquired under the Parks Act. Mr Venn's continuing conduct of mowing and using Lot 1 gives rise to a threatened or apprehended breach of s 156A(1) of the Parks Act which warrants being restrained.

290 Secondly, Mr Venn's conduct in the past gives rise to an apprehension that he may act in breach of the law in the future. The evidence establishes that Mr Venn knew, or was put on notice, that his conduct of clearing and burning vegetation on and filling of Lot 1 was at risk of being illegal but he nevertheless deliberately and defiantly continued his conduct. Moreover, when challenged about the legality of his conduct, Mr Venn variously deflected the challenge by asserting that he had development consent which authorised the works (which he did not) or that someone else was in charge of the works or obtaining approvals (such as Scouts Australia or his solicitor) or that the works were environmentally beneficial. The evidence as to those matters includes the following.

291 Mr Venn knew the only development consent he had to undertake filling of land was the development consent granted by Wyong Shire Council in 1995 and that that consent only applied to Lot 2 and not Lot 1. That was why he said he "initially intended only to complete the foreshore works started by the mining company on Lot 2 in 1996, because I had the development consent for DA 726/95 for the work." But then Mr Venn said "when I had the opportunity to put some good soil in there to raise and stabilise the foreshore on the Land [Lot 1] I couldn't resist" (Venn second affidavit of 11 May 2011, para 46).

292 Although Mr Venn knew the development consent did not extend to Lot 1, when various officers of Wyong Shire Council investigated his works, Mr Venn asserted that the consent authorised the works he proposed to undertake (Hall affidavit of 5 March 2009, para 8; Mergan affidavit of 5 March 2009, para 15). On the site inspection of 4 May 2007, Mr Venn told Messrs Hall and Mergan that he intended to carry out work pursuant to the consent up to the old fence (on the boundary between Lot 1 and Lot 3 of DP 1029487) which Mr Venn said was the boundary of his property (Hall affidavit, para 13; Mergan affidavit, para 19).

293 After the site inspection, the Council officers ascertained that the consent only authorised works on Lot 2 and not Lot 1 and that the work intended to be carried out by Mr Venn would not be on Lot 2. On 15 May 2007, Mr Mergan telephoned Mr Bruce and told him these matters. On 16 May 2007, Mr Mergan telephoned Mr Venn and had a conversation as follows:

Mr Mergan: "The work you intend to carry out is on Lot 1 in DP 509889 and there is not development consent for work on that land. The development consent that exists is for Lot 2 in DP 509889."

Mr Venn: "I have a consent for the work, the land where the fill is going to be place[d] is mine."

Mr Mergan: "You said that the fence line we were standing at was the property boundary."

Mr Venn: "Yes. That is where I believe the boundary is."

Mr Mergan: "Can you come in and see us so we can compare information."

Mr Venn: I have a consent to do the work. I have a survey which indicates the land is mine and is approved for development."

Mr Mergan: "Can we have a copy of that information?"

Mr Venn: "It's with my solicitor and Council will have to pay for a copy."

Mr Mergan: "That's unsatisfactory. I'll discuss this further with the staff here and I'll get back to you. It's Council's belief that you do not have consent for the proposed works."

294 On 18 May 2007, Mr Mergan sent a letter to Mr Venn which clearly put Mr Venn on notice of the facts that his proposed works would be on Lot 1 and not Lot 2 and that there is no development consent for the proposed works:

"I refer to our site meeting of 4 May 2007, ensuing phone conversation of 16 May 2007 and the development application mentioned above.

Council records indicate that consent was granted for foreshore rehabilitation works over Lot 2 DP 509889 & Reserve 33175 following the approval of DA/726/1995. It appears from a perusal of Council records and our joint site inspection that the area that you intend to spread further fill is not over the abovementioned site but over Lot 1 DP 509889. Council records indicate that Lot 1 DP 509889 is owned by Delta Electricity and does not form part of the development consent.

The following information has led to this conclusion:

The deposited plan for Lot 2 DP 509889 indicates that the north eastern boundary of the site is approximately 140 metres in length which is consistent with information from Council's Geographic Information System.

It appears from both the site inspection and aerial photos that land has already been cleared and reclaimed to the north western boundary of Lot 2 DP 509889.

The approved Foreshore Rehabilitation Study, Plan of Management by ERM Mitchell McCotter and approved Landscape Plan by Dewsnap Landscapes Designs from DA/726/1995 do not refer to any work more than approximately 120 metres north west of the jetty location which coincides with the abovementioned property boundary.

It is the opinion of Council that there is no consent for filling of land on Lot 1 DP 509889. Council and the consent from other Government Authorities only apply to Lot 2 DP 509889 & Reserve 33175.

...

You are advised that Council believes that there is no consent for the proposed works and that work should not be undertaken on this site without development consent ."

295 When Mr Bruce raised with Mr Venn the concerns Mr Mergan had put to him, Mr Venn said:

"Don't worry about the Council, don't worry about anybody. Don't worry about the Council, they can't come in here. No-one can come in here, this is my land. Keep going on with the work."

296 Notwithstanding these warnings about the lack of consent, Mr Venn directed the clearing and filling to proceed.

297 On 19 October 2007, after much of the clearing had occurred and during the burning of the cleared vegetation, Mr McKay of Wyong Shire Council asked Mr Venn whether he had approval to clear the land or light the fires, Mr Venn did not respond to the first part of the question as to whether he had approval to clear the land but responded to the second part of the question by saying "I didn't know you needed approval to light the fires." (McKay affidavit of 5 March 2009, para 9).

298 On 1 November 2007, two Council officers, Mr Brett Ball and Ms Jessica Noble, inspected the site in response to Mr McKay's service report regarding the alleged unapproved works being carried out by Mr Venn. They met with Mr Venn and Mr Ball said:

"We're here to investigate the alleged clearing of land, placing of fill and burning of material"

to which Mr Venn replied, "[t]he clearing is part of the 1995 consent" (Ball affidavit of 5 March 2009, para 15; Noble affidavit of 5 March 2009, paras 11 and 12).

299 Mr Ball had brought with him a copy of the 1995 development consent which he opened to the conditions. Mr Ball asked about the conditions requiring submission to the Council of information on fill and delivery routes and a dilapidation report. Mr Venn asserted repeatedly that he had provided the information to the Council. Mr Ball and Ms Noble each replied to Mr Venn that the Council's records do not show any information on delivery routes for fill or dilapidation reports being submitted to the Council. Mr Venn then changed his response to say "Oh well, the Scout Association handles all the paperwork" (Ball affidavit of 5 March 2009, para 15; Noble affidavit of 5 March 2009, paras 13-15). Mr Ball later asked Mr Venn about the Council's Tree Preservation Development Control Plan and if he was aware of it, to which Mr Venn replied:

"I am aware of it, I have not actually read it myself but my legal people have read it and advised me it was ok to proceed with tree removal. My solicitors are in charge of the works not me" (Ball affidavit of 5 March 2009, para 23; Noble affidavit of 5 March 2009, para 18).

300 On 4 December 2007, Mr Tom Bagnat, the Regional Manager, Central West Hunter Range Region of NPWS, wrote to Mr Venn saying:

"I write to you regarding vegetation clearing and land fill work allegedly being carried out by you on Lot 1, DP 509889 at Macleay Drive, Budgewoi.

Lot 1, formerly under the management and ownership of Delta Power Pty Ltd, is now part of the Colongra Swamp Nature Reserve, which is managed by the Parks and Wildlife Group of the Department of Environment and Climate Change. Reservation of Lot 1 as a Nature Reserve under the provisions of s. 30A of the National Parks and Wildlife Act 1974 took effect on February 21 st 2007. A copy of the relevant NSW Government gazettal notice is enclosed.

In addition to Lot 1 being part of the Colongra Swamp Nature Reserve, the site of recent work is on land which supports vegetation identified as an Endangered Ecological Community under Schedule 1 of the Threatened Species Conservation Act 1995 .

Our records indicated that no development consent exists to carry out any work on Lot 1.

There are a number of offences that may have occurred as a result of the vegetation clearing and land fill work on Lot 1. For example, it is an offence to pick (including pull up, destroy, remove or injure) any plant that is part of an endangered ecological community under s. 118A(2) of the National Parks and Wildlife Act 1974. The maximum penalty is $220,000 or imprisonment for 2 years or both.

It is also an offence to damage or remove any vegetation on a nature reserve, under s. 156A of the National Parks and Wildlife Act 1974. The maximum penalty is $110,000 or imprisonment for 6 months or both.

We therefore ask that you immediately cease any further work on Lot 1, and that you contact Glenn Gifford ... as soon as possible to discuss this matter." (Venn first affidavit of 16 February 2011, Tab 17, p. 1).

301 Mr Venn replied to this letter on 8 January 2008 asserting:

"The work presently being done on the property is being done on my property. I have a DA for the work, requiring the issue of a DA"

and describing the work of clearing and filling he was undertaking (quoted in para 35 above of the judgment).

302 The evidence of Mr Venn's denial that his conduct constituted breaches of the Parks Act, earlier summarised in the relevant parts of the judgment, together with his declining, before the proceedings were commenced, to give when requested an undertaking to stop the conduct, also gives rise to an apprehension that Mr Venn may, in the future, act in breach of the Parks Act.

303 Thirdly, having regard to Mr Venn's unwillingness to accept that his past conduct amounted to picking of plants of endangered ecological communities, there is a need for restraining orders to be made in terms that are specific, clear, unambiguous and enforceable. Mr Venn needs to understand the requirements of and the obligations imposed by the Parks Act: see Strathfield Council v Xu Hong Lin and Wei Jiang t/as Play Electronics (1994) 130 LGERA 344 at 349.

304 Fourthly, Mr Venn's undertaking was conditional upon finding that Lot 1 is "part of a nature reserve or an endangered ecological community of the kind alleged". These two limbs of the condition of the undertaking evidently are based on s 156A(1) and s 118A(2) of the Parks Act respectively. I have found that the endangered ecological communities of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest existed at the time of Mr Venn's conduct between May 2007 and July 2008, and continue to exist on the part of Lot 1 that was cleared and filled. This is not the same as finding that "Lot 1 in Deposited Plan 509889 is part of .. an endangered ecological community of the kind alleged". Hence the second limb of the condition of the undertaking may not be satisfied. I have also found that Lot 1 was not validly reserved as a nature reserve. The first limb of the condition of the undertaking is not satisfied. I note however that s 156A(1) applies not only to land reserved but also to land acquired under the Parks Act. Mr Venn's undertaking does not address the situation of Lot 1, even if not reserved, nevertheless being acquired under the Parks Act. I have found that on registration of the transfer on 10 February 2009, Lot 1 was acquired under Part 11 of the Parks Act. Hence, s 156A(1) will apply to any future conduct of Mr Venn involving work on, harm to or picking of plants from Lot 1.

305 Fifthly, Mr Venn's undertaking only relates to refraining from doing certain actions, not taking any action including remedying any harm caused by the conduct in breach of the Parks Act. The undertaking is therefore insufficient.

306 The terms of the restraining orders should, generally, be as sought by the plaintiff. However, I would vary the wording to be more precise. The terms I propose are set out at the conclusion of the judgment.

Orders remedying harm caused by breach

307 The plaintiff, in its proceedings under s 193 of the Parks Act, seeks orders not only to restrain breaches of the Parks Act but also orders to remedy breaches of the Parks Act. The reference to "remedy" a breach in s 193 of the Parks Act is sufficient to encompass orders by the Court requiring rehabilitation of the land harmed by the conduct in breach of the Parks Act: see similarly in Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [105] and see also [106], [309], [315]. The Court's jurisdiction under s 20(2) of the Land and Environment Court Act 1979 to enforce an obligation imposed by, amongst other laws, the Parks Act (see s 20(3)(a)) is also sufficient to enable remedial orders being made.

308 The plaintiff seeks for Mr Venn to remedy his breaches in three main ways: first, to arrange for a survey of the common boundary between Lot 1 and Lot 2 and the erection of a fence along the surveyed boundary; secondly, to remove signs Mr Venn has affixed to trees or other vegetation on Lot 1; and thirdly, to arrange for an assessment of the environmental harm caused by the fill and waste pit on Lot 1 and the preparation of a remediation action plan which should form the basis for further remedial orders.

309 Mr Venn opposed the making of all such remedial orders.

Surveying and fencing

310 The plaintiff seeks an order that Mr Venn arrange for a surveyor to survey and mark with labelled surveying pegs the whole of the common boundary between Lot 1 and Lot 2.

311 The plaintiff seeks the survey in order to facilitate and ensure compliance with both the restraining and remedial orders of the Court, which depend for their efficacy upon clear identification and understanding of the boundaries of Lot 1, as well as to mark the location of the fence to be erected along the common boundary of Lot 1 with Lot 2. The plaintiff submits the need for a survey is underscored by the evidence, including of Mr Venn himself, as to the lack of appreciation and confusion by Mr Venn and others who worked at or visited the site as to the location of the boundary between Lot 1 and Lot 2.

312 I agree with the plaintiff, for the reasons the plaintiff gives, that there is a clear and present need for the boundary between Lot 1 and Lot 2 to be surveyed and marked with labelled surveying pegs.

313 The plaintiff nominated Mr Greg Smith, surveyor, of Daly Smith Pty Ltd, to undertake the survey. Mr Smith had undertaken survey work on the site and gave evidence in the proceedings. Although there may be some advantage in using Mr Smith because of his prior work on the site, I do not consider the Court should mandate that Mr Venn is to use Mr Smith as the surveyor.

314 The plaintiff seeks an order that Mr Venn arrange for a cyclone wire fence not less than 1.8 metres in height to be erected along the length of the common boundary between Lot 1 and Lot 2 and that such fence contain dual locked gates allowing vehicular access between Lot 1 and Lot 2. The plaintiff again nominated the person who should undertake the work.

315 The plaintiff seeks the fence and the dual locked gates so as to exclude Mr Venn and his agents from accessing Lot 1 except for the purpose of undertaking remedial works ordered by the Court.

316 Mr Venn opposed the order because, first, he should not be excluded from entering and using Lot 1, secondly, he should not have to pay for the full cost of a dividing fence between Lot 1 and Lot 2 but only half of the cost and thirdly, he should not have to pay for a fence of the description sought by the plaintiff but only the cheapest type of fence.

317 I consider Mr Venn should be responsible for, and pay the cost of, erecting a fence along the boundary between Lot 1 and Lot 2. A fence is necessary to facilitate and ensure compliance with the restraining and remedial orders of the Court. Whilst the survey and marking of the boundary with surveying pegs will clearly demarcate Lot 1 from Lot 2, such demarcation will only persist so long as the surveying pegs remain visible. The evidence establishes that a previous surveyor's peg on the low-lying flat at the boundary between Lot 1 and Lot 2 disappeared. Mr Venn speculated that a scout took it to use as a sword. Mr Venn has given a lease over Lot 2 to the Scouts Association and otherwise permits scouts to camp and use Lot 2 as well as Lot 1 for their recreational activities. Without a fence there is no real means of ensuring that Mr Venn and his invitees, such as scouts, remain on Lot 2 and not use and carry out activities on Lot 1. A fence is necessary to ensure compliance with the restraining orders. Furthermore, if Lot 1 is rehabilitated, a fence will ensure that persons are prevented from entering the rehabilitated vegetation and land and thereby causing damage.

318 I do not consider it appropriate to nominate in the court order the person who should erect the fence; it is sufficient to state that the person be a qualified fencing contractor. I also do not consider that I should specify the type of fence to be erected before the plaintiff and Mr Venn have had an opportunity to consult and agree upon the specifications for the fence. It may be that the cyclone wire fence specified by the plaintiff is the most effective and economical fence for the purpose, but this should first be discussed by the parties. If agreement is not able to be reached as to the specifications of the fence, the parties can exercise the liberty to apply which I will grant and I can rule on the specifications. I consider that the gates should be able to be locked, but that each of the plaintiff and Mr Venn should be able to open the lock, rather than there being dual locks. The purpose of the lock is to ensure compliance with the restraining and remedial orders, not to promote or negate the parties' respective claims for ownership of Lot 1.

Removal of signs

319 Mr Venn has over the years affixed on trees and other vegetation and otherwise placed signs on Lot 1. These signs bear various writings including "Keep Out" and "Private Property". The signs have caused, are causing and will continue to cause damage to the trees and vegetation. Nails and other fasteners damage the trees. The plaintiff seeks an order that Mr Venn remove or cause to be removed all such signs. I agree that this course is appropriate. It is not an onerous task.

Remediation action plan and subsequent rehabilitation

320 The most substantive order sought by the plaintiff is for Mr Venn to arrange for an assessment of the environmental harm caused by the fill and waste material he placed or caused to be placed on Lot 1 and the preparation of a remediation action plan which will recommend the action needing to be taken to remediate and rehabilitate the Disturbed Area and the waste pit on Lot 1.

321 The evidence, particularly of Dr Keith, establishes that the fill has caused and is continuing to cause environmental harm. The fill is preventing re-growth of vegetation from underneath the fill; damaging the health of trees and other vegetation around which fill has been placed; and inhibiting germination of seeds or recolonisation by native species of plants by reason of being imported soil and other materials and not the natural soil of the particular area of the endangered ecological communities.

322 The fill has also been observed to contain asbestos. Mr Steven James, an investigator with the Specialist Investigation Unit of DECCW, observed and photographed asbestos sheeting in the fill spread on Lot 1. He collected a sample which was sent for laboratory testing (James affidavit of 22 June 2010, paras 85-89). The laboratory testing detected asbestos (affidavit of Matthew Mansfield of 12 May 2011, paras 8 and 9 and certificate of analysis dated 9 July 2009).

323 Mr Venn also has had dug and has deposited waste materials in a dump hole or waste pit on Lot 1. Mr Venn said he has had, over the years since 1975, a number of waste pits into which he has disposed of rubbish (respondent's submission dated 19 May 2011, para 132). The current hole was dug by Mr Bruce at the direction of Mr Venn on Lot 1. Various waste materials have been deposited in this hole.

324 The plaintiff first seeks an order that Mr Venn arrange for a contamination assessment of the fill (which would include any asbestos) and the waste pit to be undertaken and a remediation action plan to be prepared. The plaintiff seeks a further order that Mr Venn remove the material Mr Venn or his servants or agents deposited in the hole.

325 The plaintiff submits that there needs to be further investigation and assessment of the fill and waste pit to ascertain the environmental threat posed and then formulate appropriate and cost effective remedial action. Such a step-wise approach acknowledges the uncertainties, including imperfect knowledge, promotes research and investigation to reduce uncertainties, and then proposes cost-effective solutions to the environmental problems. Such a step-wise approach was adopted by the Court in making orders to remediate environmental harm caused by clearing of native vegetation and an endangered ecological community in Great Lakes Council v Lani [2007] NSWLEC 681; (2007) 158 LGERA 1 at [13]-[15] and [46].

326 The plaintiff nominates the person to undertake the contamination assessment and to prepare the remediation action plan as Mr Michael Frankcombe, a rehabilitation practitioner with experience in the rehabilitation of disturbed and degraded areas, who gave evidence in the proceedings. Mr Frankcombe recommended rehabilitation be undertaken in six stages. Stage 1 involved undertaking a combined Phase 1 and Phase 2 contamination assessment of the fill and waste pit and then preparation of a remediation action plan. The justification for carrying out this stage is to determine the type and extent of soil contamination and determine the volume of contaminated and non-contaminated material for excavation and disposal. The knowledge gained from stage 1 would inform the action undertaken on the remaining stages and the costing. The following stages would involve, in general terms: excavation and removal of contaminated material (stage 2); investigation and preparation for revegetation works (stage 3); undertaking revegetation works (stage 4); monitoring establishment of vegetation and undertaking maintenance (stage 5); and weed control (stage 6) (Frankcombe expert report of 5 May 2011, p. 4, Table 5.1). The plaintiff submits Mr Frankcombe should be engaged to undertake Stage 1.

327 I agree with the plaintiff that it is appropriate in the circumstances to adopt a step-wise approach involving, first, a contamination assessment of the fill and waste pit followed by preparation of a remediation action plan, and secondly, the determination by the Court of what further orders should be made to remedy the environmental harm caused by Mr Venn's conduct, including actions of the type recommended by Mr Frankcombe in his stages 2 to 6.

328 I also agree that Mr Venn as the person who caused the environmental harm should be responsible for remedying it. Such a course implements the polluter pays principle. Expressed simply, this principle holds that those who generate pollution or waste should bear the costs of containment, avoidance or abatement. The principle requires the polluter to take responsibility for the external costs to the environment and the community arising from its pollution. This can be done by the polluter cleaning up the pollution and restoring the environment as far as practicable to the condition it was in before being polluted. The polluter ought also to make reparation for any irremediable harm caused by the polluter's conduct such as death of biota and damage to ecosystem structure and functioning: Environment Protection Authority v Waste Recycling and Processing Corp [2006] NSWLEC 419; (2006) 148 LGERA 299 at [230] and see also Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234 at [70], [157].

329 The polluter pays principle is one of the principles of ecologically sustainable development. The objects of the Parks Act include the conservation of habitat, ecosystems and ecosystem processes, and of biological diversity at the community, species and genetic levels (s 2A(1)(a)(i) and (ii) of the Parks Act). The objects of the Parks Act are to be achieved by applying the principles of ecologically sustainable development (s 2A(2)). The principles of ecologically sustainable development are defined in s 5 of the Parks Act to mean the principles of ecologically sustainable development described in s 6(2) of the Protection of the Environment Administration Act 1991. One of these is in para (d), being improved valuation, pricing and incentive mechanisms, namely that environmental factors should be included in the valuation of assets and services, such as "(i) polluter pays - that is those who generate pollution and waste should bear the cost of containment, avoidance or abatement".

330 Hence, an order to remedy a breach of the Parks Act should seek to achieve the objects of the Parks Act by applying the principles of ecologically sustainable development, including the polluter pays principle.

331 Mr Venn opposes the Court making any remedial orders for two main reasons. First, Mr Venn submits his conduct of clearing and filling Lot 1 has had a beneficial effect on the environment, improving it from being a "waterlogged, detritus filled ooze" (Venn second affidavit of 11 May 2011, paras 47 and 50). Mr Venn asserts "he has not damaged the land: he has recovered land and partially rehabilitated it" (letter dated 14 April 2010 from Ms Kardell (Mr Venn's solicitor) to DECCW in Venn second affidavit, Tab 37, p 6).

332 Secondly, Mr Venn asserts he cannot afford to pay for the work of rehabilitating the land harmed by his conduct. He says whilst he might be asset rich (he owns Lot 2), he is income poor being only a pensioner.

333 In relation to the waste pit, Mr Venn says that, if anything at all needs to be done, the hole should simply be filled in, covering the waste.

334 As to Mr Venn's first reason, I reject Mr Venn's assertion that his conduct of clearing and filling Lot 1 and disposing of rubbish in the waste pit has had a beneficial effect on the environment. Mr Venn's perception of his conduct as improving the environment is anthropocentric and idiosyncratic and not supported by the evidence. The evidence to which I have referred earlier in finding that Mr Venn picked plants of endangered ecological communities, particularly that of Dr Keith, establishes that material environmental harm has been caused by Mr Venn's conduct including to the endangered ecological communities of Swamp Oak Floodplain Forest and River-Flat Eucalypt Forest on Lot 1.

335 As to Mr Venn's second reason, there is a paucity of evidence of Mr Venn's financial means. Mr Venn simply asserted in his oral evidence in chief that he had "no money to pay for remediation" and he and his wife were "only pensioners". Mr Venn did not tender any financial statements, including any balance sheet or statement of assets and liabilities, any profit and loss or income statements or bank statements. The plaintiff tendered a statement of the land value of Lot 2 owned by Mr Venn prepared by the Land and Property Information Division of the Land & Property Management Authority for the 2010-2011 valuing year. The land value excluding any structural improvements was $800,000 (Exhibit J).

336 It is incumbent on a person who wishes for the Court to exercise its discretion not to make otherwise appropriate orders to remedy the person's statutory breach, on the basis of a lack of financial means to put before the Court adequate and accurate financial information and statements establishing that financial position. As has been said in the different context of sentencing for an environmental offence, largely indefinite financial circumstances should not be used to mitigate the fine to any appreciable extent: Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349 at 353 and Bentley v BGP Properties Pty Ltd at [275]. Equally, in the context of making orders in civil proceedings to remedy a statutory breach, largely indefinite financial circumstances should not be used to decline making otherwise appropriate remedial orders.

337 In any event, any economic prejudice to the person in breach caused by making remedial orders needs to be balanced against the prejudice to the public interest if remedial orders were not to be made.

338 First, the breaches of the Parks Act in this case are serious, and not merely technical, and have caused material environmental harm: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339.

339 Secondly, there is the public interest in the proper enforcement of public welfare statutes, such as planning and environment laws including the Parks Act: Warringah Shire Council v Sedevcic at 339-340; Lane Cove Council v Sarkozy (1996) 130 LGERA 240 at 245-246. There is the public interest in the proper and reliable public administration of the planning and environment laws: Ellison v Warringah Shire Council (1985) 55 LGRA 1 at 13. There is also the public interest in protecting the environment and components of it: Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1 at [56].

340 Thirdly, the plaintiff, being the Director-General of the government department with responsibility for administering the Parks Act, is one of the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary. Hence, a court is less likely to deny equitable injunctive relief where the proceedings are brought by such a public official or authority than it would in litigation between private citizens: Warringah Shire Council v Sedevcic at 340.

341 Fourthly, although the fill and the waste pit is now a "static" development (see Warringah Shire Council v Sedevcic at 340), the environmental harm is continuing and furthermore there is an apprehended or threatened breach by Mr Venn who intends to continue to mow and otherwise use Lot 1, which damages the vegetation on it.

342 There is no "hard and fast exception" that the discretion to decline relief will be more readily exercised in the case of a static development than otherwise. Courts have ordered static developments, such as buildings erected in breach of planning law, to be demolished: see Tynan v Meharg & Newcastle City Council (1998) 101 LGERA 255 at 260 and Barton v Orange City Council [2008] NSWLEC 104 at [50], [54].

343 In this case, also, the step-wise approach that I favour, namely, undertaking a contamination assessment which informs a remediation action plan then making further remedial orders, will balance the public interest in enforcing the law and remedying the breach and environmental harm against any degree of irremediability occasioned by the breach and the expense or inconvenience which would follow the law's enforcement: Warringah Shire Council v Sedevcic at 340. It will prevent relief being granted, which "would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation": ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82.

344 Finally, it is relevant that the breach of the Parks Act did not come about because Mr Venn was in any way misled about the Parks Act or his obligations under it: Lane Cove Council v Sarkozy at 246. As found above, Mr Venn deliberately undertook the clearing and filling of Lot 1 notwithstanding knowledge that such conduct was at risk of being illegal.

345 In summary, the weighing exercise falls heavily in favour of making orders remedying the breach. I consider Mr Venn should be ordered to arrange for a qualified remediation practitioner to undertake contamination assessment of the fill and waste pit and prepare a remediation action plan as recommended by Mr Frankcombe in his stage 1. However, I do not consider it appropriate that the Court mandate that Mr Frankcombe undertake the work, although there would be some efficiencies if he were to be engaged by Mr Venn.

346 I also consider it would be premature to order, before such assessment has been undertaken, the removal of materials from the waste pit. Such removal might prove to be the most appropriate remedial action but this should first be assessed and recommended in the remediation action plan.

347 After the assessment has been undertaken and the remediation action plan prepared, the matter should return to the Court to determine the further orders that should be made to remedy the breach and environmental harm caused.

ORDERS OF THE COURT

348 The Court makes:

1. A declaration that between about May 2007 and July 2008 Mr Venn, in breach of s 118A(2) of the National Parks and Wildlife Act 1974 ("the Parks Act"), picked plants of two endangered ecological communities, the Swamp Oak Floodplain Forest of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions ("the Swamp Oak Floodplain Forest") and the River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions ("the River-Flat Eucalypt Forest"), on Lot 1 of Deposited Plan 509889 ("Lot 1").

2. An order that, except to the extent necessary to comply with these or any further orders of the Court, Mr Venn refrain, and Mr Venn ensure that his agents, contractors, lessees, licensees and invitees (and use his best endeavours to ensure that any other persons) refrain, from picking plants of the Swamp Oak Floodplain Forest or the River-Flat Eucalypt Forest on Lot 1 contrary to s 118A(2) of the Parks Act.

3. An order that, except to the extent necessary to comply with these orders of the Court, Mr Venn refrain, and Mr Venn ensure that his agents, contractors, lessees, licensees and invitees (and use his best endeavours to ensure that any other persons) refrain, from damaging and/or removing any vegetation, rock, soil, sand, stone or similar substances on or in Lot 1 contrary to s 156A(1)(b) of the Parks Act, including without limitation refrain from:

(a) mowing, slashing, cutting down, pushing over, lopping, removing, destroying or otherwise damaging vegetation, whether dead, dying or alive;

(b) depositing fill, excavated natural material, rock, soil, sand, stone or similar substance or demolition waste or building materials;

(c) excavating, stripping, moving or removing soil, including topsoil and subsoils;

(d) depositing, discarding or storing materials, equipment or waste;

(e) affixing signs including nailing signs to plants; and

(f) carrying out organised recreational or educational activities, including camping, canoeing, training and Scout activities.

4. An order that, except to the extent necessary to comply with these or any future orders of the Court, Mr Venn refrain, and Mr Venn ensure that his agents, contractors, lessees, licensees and invitees (and use his best endeavours to ensure any other persons) refrain, from accessing Lot 1 from Lot 2 in Deposited Plan 509889 ("Lot 2") by vehicular means.

5. An order that Mr Venn, within 14 calendar days of the date of these orders, do all things reasonably necessary to cause a registered surveyor (who can be, but need not be, Mr Greg Smith, surveyor, of Daly Smith Pty Ltd) to survey and mark with labelled surveying pegs the whole of the common boundary between Lot 1 and Lot 2.

6. An order that Mr Venn, within 28 calendar days of Order 5 being performed, and subject to Order 7, do all things reasonably necessary to cause a qualified fencing contractor to erect a fence along the length of the common boundary between Lot 1 and Lot 2, such fence to include a gate or gates (with locks capable of being opened by both the plaintiff and Mr Venn) at an appropriate location or locations allowing vehicular access between Lot 1 and Lot 2.

7. An order that Mr Venn, prior to causing the erection of the fence under Order 6, consult with and obtain the agreement in writing of an officer nominated by the plaintiff as to the specifications of the fence, gates and locks and the location of the gate or gates.

8. An order that Mr Venn, within 14 calendar days of the date of these orders, remove or cause to be removed signs or labels (together "signs") from Lot 1, including signs affixed to trees or bearing the words "keep out" and "private property" and nails affixing or materials supporting signs, previously placed by Mr Venn or anyone on his behalf on Lot 1, including on vegetation in Lot 1.

9. An order that Mr Venn, within 28 days of the date of these orders, do all things reasonably necessary to cause an appropriately qualified and experienced rehabilitation practitioner (who can be, but need not be, Mr Michael Frankcombe of KMH Environmental) to:

(a) undertake a combined Phase 1 and Phase 2 contamination assessment of the fill and waste pit on Lot 1;

(b) prepare a remediation action plan;

being Stage 1 of the proposed rehabilitation stages referred to in the expert report of Mr Michael Frankcombe, "Colongra Swamp Nature Reserve, Estimate of Remediation and Rehabilitation Costs", 5 May 2011 ("the Frankcombe Report").

10. An order that Mr Venn, within 7 calendar days of each of the Orders 5, 6, 8 and 9 being performed, give notice in writing to an officer nominated by the plaintiff that each of the orders have been complied with and, in the case of Order 9, provide a copy of the assessment and remediation action plan.

11. For the purpose of these orders, "do all things reasonably necessary" includes without limitation:

(a) the arranging and giving of access to Lot 1 from Lot 2 for the purposes of the carrying out of these orders; and

(b) the payment of all reasonable fees and expenses arising from these orders, including the pre-payment of those fees and expenses.

12. An order that the proceedings be adjourned to 30 August 2011 at 9.15am for the purposes of hearing and determining the further orders for remediation and rehabilitation of Lot 1 (including orders requiring undertaking the measures and works recommended in the remediation action plan prepared pursuant to Order 9 and in Stages 2 to 6 inclusive of the proposed rehabilitation stages in the Frankcombe Report), which should be made.

13. An order reserving liberty to the parties to apply on 5 days' notice for any further or other orders (including orders revoking or varying or supplementing or replacing these orders in whole or part upon sufficient cause, such as unforseen or changed circumstances, being shown).

14. An order granting liberty to apply generally on 5 days' notice.

15. An order reserving the question of the costs of the proceedings.

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Decision last updated: 08 July 2011