Land and Environment Court New South Wales

• Medium Neutral Citation: Director-General, Department of Environment, Climate Change and Water v Venn (No 3) [2012] NSWLEC 31
• Hearing dates: 13 and 14 February 2012
• Decision date: 14 February 2012
• Jurisdiction: Class 4
• Before: Preston CJ

Decision

Orders as set out at [29]

• Catchwords: CIVIL ENFORCEMENT - remedies for breach of statute - parties' single expert recommended measures to remedy environmental harm - whether orders should be made implementing recommendations - whether orders should identify person responsible to carry out restoration work - parties' single expert identified as person responsible to cause restoration measures to be performed - applicant sought for Court to order measures in variance with those recommended by parties' single expert - adoption of recommendations of parties' single expert in Court orders - protocol for disposal of asbestos waste if discovered - costs - applicant sought its costs to be paid - applicant unsuccessful in obtaining variances to parties' single expert's recommendations - order for respondent to pay applicant's costs not fair and reasonable - parties to pay own costs of proceedings
• Legislation Cited: National Parks and Wildlife Act 1974
• Cases Cited: Director General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118; Director General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232
• Category: Consequential orders
• Parties: Director-General, Department of Environment, Climate Change and Water (Applicant); Mr Anthony De Lisle Venn (Respondent)
• Representation: Mr A Hill, Solicitor (Applicant); Ms C Kardell, Solicitor (Respondent); NSW Office of Environment & Heritage (Applicant); Ms C Kardell, sole practitioner (Respondent)
• File Number(s): 40826 of 2010

Judgment

1 Mr Venn has been found by the Court to have breached the National Parks and Wildlife Act 1974 by directing the clearing and filling of land on which there were two endangered ecological communities. Mr Venn has been restrained from continuing the breach: see Director General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118.

2 Orders also need to be made to remedy the breach and, in particular, the environmental harm caused by the breach. It has taken considerable time for the parties to prepare the evidence and submissions as to the appropriate remedial orders that should be made. The types of orders, and the process of preparing for and determining the appropriate orders, are explained in part in the principal judgment, Director General, Department of Environment, Climate Change and Water v Venn [2011] NSWLEC 118, and the second judgment, Director General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232.

3 A parties' single expert in restoration ecology, Ms Elizabeth Ashby, was appointed to provide, and has provided, an expert report in relation to remedying the harm caused to the endangered ecological communities by Mr Venn's clearing and filling activities to best promote the reestablishment of the endangered ecological communities. The applicant department sought clarification of Ms Ashby's report and Ms Ashby has provided responses to the applicant's questions.

4 Ms Ashby recommends a staged approach to restoration. In relation to the fill, Ms Ashby is satisfied that, on balance, the characteristics of most of the fill are such that it can remain, but three mounds and a bund of fill, as well as two small piles of woodchips, should be removed. Ms Ashby considers that removal of all fill would cause more environmental harm, and involve considerably more expense, than retention and selective removal as she has recommended. Ms Ashby accepts that the fill removed can be used, in part, to fill the waste pit on Lot 1 and, for the balance, on Mr Venn's adjoining property, Lot 2. It is not necessary, according to Ms Ashby, for the fill to be disposed of at a waste facility.

5 Prior to earthworks, Ms Ashby recommends erosion and sediment control be undertaken, including repairing the sediment fence at the site.

6 In relation to restoration of the endangered ecological communities, Ms Ashby recommends collection and propagation of characteristic species of plants of the endangered ecological communities from the site and the adjacent nature reserve and planting them in the disturbed area. Prior to planting, primary weeding and weed control of bare soil should be undertaken. After planting, there should be a five year period of maintenance.

7 At the hearing on the orders to be made, neither the applicant nor Mr Venn required Ms Ashby to attend to give evidence or be crossexamined.

8 Mr Venn accepted the measures recommended by Ms Ashby. The applicant also accepted most of Ms Ashby's recommendations but did raise some issues and sought some variations to the measures. During the course of the hearing some of the issues were not pressed and some were resolved. I will deal with the remaining issues.

9 The applicant pressed for the court orders to identify the bushland restoration consultant who would undertake the work. In her response to the applicant's clarification questions, Ms Ashby had identified one suitable person, Mr Damien Moey. The applicant obtained an affidavit from Mr Moey wherein he gave an indicative quotation. This was 50 per cent higher than the indicative costings Ms Ashby had provided in her report, informed by discussions with Mr Moey. The applicant also provided another affidavit from another bushland regenerator, Mr Paul Malligan, who provided another quotation that was 250 per cent higher than Ms Ashby's indicative costings.

10 Mr Venn was concerned that if the Court ordered either of these persons to be the contractor, the cost would be considerably greater than if Ms Ashby were to be the person responsible. Ms Ashby indicated that she would be prepared to be the person identified with the responsibility to cause the measures to be put into effect, by arranging a suitably experienced and qualified bush regenerator contractor to perform the work, although she would charge a fee for performing that role.

11 In the end, the applicant and Mr Venn reached agreement that the most appropriate course would be to identify Ms Ashby as the restoration consultant who would arrange for the work to be done. Ms Ashby has shown by her reports that she is conscious of the need to be cost effective in achieving the desired restoration goals. I will, therefore, make orders requiring Mr Venn to appoint Ms Ashby to cause the measures recommended in her report to be undertaken.

12 The applicant had originally pressed for all of the fill to be removed. After Ms Ashby recommended that only certain mounds and the bunds be removed, the applicant accepted that the balance of the fill could remain. However, the applicant pressed for the fill that is to be removed to be disposed of at a waste facility and not on Lot 2 owned by Mr Venn.

13 I am not satisfied that disposal at a waste facility (at a significantly greater cost to Mr Venn) is necessary. Ms Ashby did not consider such disposal to be necessary. Apart from her own observations, Ms Ashby had regard to the analysis of the soil by Sydney Environmental and Soil Laboratory ("SESL") and the joint expert report of the parties' experts on contamination. The evidence does not establish that the fill in the mounds and bund is unsuitable for disposal on Lot 2. I agree with Ms Ashby. Mr Venn would be under an existing duty at law not to place the fill on his property in such a location or manner as would cause a nuisance or harm to Lot 1. This includes ensuring that any weeds, seeds or propagules in the fill do not escape onto Lot 1.

14 Ms Ashby recommends that the waste pit on Lot 1 be filled. The applicant did not disagree but sought for the contents of the waste pit to be excavated and disposed of at a waste facility prior to filling. I do not consider such excavation is necessary. SESL examined the waste pit and concluded that its contents had not caused and were not likely to cause unacceptable contamination and recommended that filling of the waste pit would be sufficient. Ms Ashby agreed. I do not consider the evidence establishes that it is necessary to remove the contents of the waste pit before filling. The timber and steel frame in the pit can remain and be contained and covered with the fill.

15 The applicant has been concerned about asbestos in the fill as a result of the discovery of a piece of asbestos sheeting. Since that discovery, no other asbestos has been found, notwithstanding investigations by the applicant's experts and SESL. I do not consider the risk of further asbestos being in the fill is sufficient to warrant removal and disposal of all of the fill. SESL and Ms Ashby did not recommend this course. However, I consider it prudent to impose as a condition a protocol to be implemented if asbestos were to be discovered in undertaking the works. The applicant has proposed, and Mr Venn has agreed to, such a protocol.

16 There is an existing problem of weed infestation in the nature reserve surrounding the disturbed area. The applicant suggested that this problem may have been contributed to by Mr Venn's actions in clearing and filling the disturbed area. The applicant sought for the remedial orders to extend beyond the disturbed area to adjacent bushland.

17 There is indeed a weed infestation in the nature reserve which will need to be addressed by the National Parks and Wildlife Service. However, the evidence does not establish that Mr Venn's breach of the National Parks and Wildlife Act is responsible for this infestation. I do not consider that the remedial order should extend beyond the disturbed area.

18 Nevertheless, I note that it would be beneficial if the National Parks and Wildlife Service could dovetail its management activities, including weed management, with the work required to be done by these orders so as to achieve synergies in addressing the weed problem.

19 The applicant sought for the orders to specify the periodicity of reporting on progress of the works. After discussion, the applicant and Mr Venn agreed that it would be sufficient for the orders to specify that the restoration consultant provide compliance reports to the applicant not less than every three months.

20 The applicant also sought that the orders made should be final and bring the proceedings to a close. I agree. However, the nature of the work required by the orders and the period over which the work will be required to be undertaken makes it desirable to leave some capacity for the parties to seek, and the Court to make, variation to the orders if unforeseen events were to occur. For example, severe natural events, such as storms, flooding or fire, could adversely affect restoration work and require alternative work to be done. It is appropriate, therefore, to grant liberty to the parties to seek further or other orders.

21 The discussion so far resolves the issues raised by the applicant concerning Ms Ashby's recommended measures. I will make orders shortly requiring Ms Ashby's recommended measures be implemented in accordance with these reasons.

22 There are two other matters to be addressed. One is that Mr Venn has not yet complied with the court order that he erect a permanent fence along the boundary between Lot 1 and Lot 2. Mr Venn has erected a temporary fence but delayed erecting the permanent fence because of cost considerations. He states in his recent affidavit of 8 February 2012 that he borrowed money to pay for the SESL reports and Ms Ashby's reports. Faced with these costs, he deferred arranging for the permanent fence to be erected. He still intends to do so but seeks more time.

23 I do not propose to vary the order I made on 11 November 2011 requiring the permanent fence to be erected by 9 December 2011. That order has been entered. Mr Venn is in breach of that order and will remain in breach until he does the work. It is incumbent on Mr Venn to do so promptly. He is aware of the consequences of failing to comply with a court order, including being punished for contempt.

24 The other matter is the costs of the proceedings after 11 November 2011. I dealt with the costs of the proceedings up to that time in my second judgment.

25 The applicant seeks its costs while Mr Venn submits the appropriate order is that each party pay their own costs. I should note that the costs of Ms Ashby's report and her answers to the applicant's questions are already covered by my orders of 11 November 2011 and are to be paid by Mr Venn. The applicant now seeks the costs of its departmental experts conferring and preparing a joint expert report with SESL and of the applicant considering Ms Ashby's report and appearing at this hearing on the orders to be made.

26 Mr Venn submits that the applicant has not been sufficiently successful in obtaining the relief it sought to justify ordering costs against Mr Venn. The applicant had sought for the whole of the fill to be removed and disposed of at a waste facility. The applicant also sought for variations of Ms Ashby's recommended measures. The applicant has not been successful in obtaining this different relief.

27 The applicant submits that the evidence of its departmental experts would have been necessary in any event even if the applicant had not sought for the total removal and disposal of the fill. The applicant submits it acted reasonably in reducing the amount of costs by not engaging counsel and otherwise being economical in its preparation and conduct of the hearing. The applicant submits it has still been successful in the event in that remedial orders will be made.

28 I consider the appropriate order in the circumstances is for the parties to pay their own costs of the proceedings after 11 November 2011, up to and including this hearing on further orders. The applicant, by its departmental evidence and the case it put forward up to obtaining clarification of Ms Ashby's report, had been contending that all fill should be removed and disposed of at a waste facility. The applicant also sought for variations to Ms Ashby's recommended measures. In large part, the applicant has not been successful in obtaining these variations. I do not consider it fair and reasonable to order Mr Venn to pay the respondent's costs in relation to these matters. Accordingly, each party should pay their own costs of the proceedings after 11 November 2011.

29 Accordingly, I make the following orders:

(1) Mr Venn, at his own cost, within 14 days of the date of these orders, is to do all things reasonably necessary to appoint Ms Elizabeth Ashby as the restoration consultant who will cause the measures recommended in her expert report dated 3 February 2012, as clarified by her letter of 10 February 2012, to be performed.

(2) For the purposes of paragraph 9.9 of the expert report of Elizabeth Ashby dated 3 February 2012, the appointed restoration consultant shall provide compliance reports to the plaintiff's nominated officer not less than every three months.

(3) When performing the measures recommended in the expert report of Elizabeth Ashby dated 3 February 2012, Mr Venn shall do all things reasonably necessary to cause the appointed restoration consultant to:

(a) Subject to order 3(c), engage and supervise an appropriately qualified and experienced person to remove from Lot 1 and lawfully dispose of:

(i) the stockpiles of 'fill' referred to as 'TP7', 'TP2', the bund and the unnamed stockpile in MU3, as identified in paragraph 9.13 of the expert report of Elizabeth Ashby dated 3 February 2012; and

(ii) the "two small piles of woodchips" identified in paragraph 10.9 of the expert report of Elizabeth Ashby dated 3 February 2012;

(b) engage and supervise an appropriately qualified and experienced person to fill in the "waste pit" identified in paragraph 10.2 of the expert report of Elizabeth Ashby dated 3 February 2012 with the 'spoil from its excavation';

(c) upon discovering any material suspected to be, or to contain, asbestos:

(i) notify the plaintiff's nominated officer;

(ii) have that material analysed by an appropriately qualified and experienced person; and

(iii) if that appropriately qualified and experienced person notifies the appointed restoration consultant that the discovered material is in fact asbestos waste, arrange for the lawful disposal of that waste before performing any further measures recommended in the expert report of Elizabeth Ashby dated 3 February 2012.

(4) For the purposes of these orders, "do all things necessary" includes without limitation:

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

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

(5) Liberty to both parties to apply for any further or other orders (including orders revoking, varying, supplementing or replacing these orders in whole or part, upon sufficient cause, such as unforeseen or changed circumstances, being shown).

(6) Each party is to pay their own costs of the proceedings after 11 November 2011, including costs of the hearing of these orders.

(7) The exhibits may be returned to the parties.

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Decision last updated: 03 March 2012