Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Joly Pty Ltd v Director-General, Department of Environment, Climate Change and Water [2012] NSWCA 133
• Hearing dates: 12 and 13 December 2011
• Decision date: 11 May 2012
• Before: Bathurst CJ at [1]; Whealy JA at [39]; McClellan CJ at CL at [40]

Decision

1 Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: ENVIRONMENT AND PLANNING - acquisition of land - whether remediation direction effectively prohibiting use of land within power of Court of Minister - whether constitutes acquisition of land; ENVIRONMENT AND PLANNING - development control or assessment - planning instruments - local environmental plan - interpretation - whether local environment plan provided exception to consent requirement under Native Vegetation Act 2003 s 12
• Legislation Cited: Environmental Planning and Assessment Act 1976, Pt 4, s 76; Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 16, s 43A; Moree Plains Local Environmental Plan 1995; Native Vegetation Act 2003 s 4, s 12, s 13, s 14, s 15, s 25, s 36, s 38, s 39; Native Vegetation Conservation Act 1997, s 21, s 22
• Cases Cited: Holmes v Director General of the Department of Infrastructure Planning and Natural Resources [2005] NSWLEC 264; Minister for the Environment and Heritage v Greentree (No 2) [2004] FCA 741; (2004) 138 FCR 198; Oates v Director General of the Department of Infrastructure Planning and Natural Resources [2004] NSWLEC 164; Slack-Smith v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189; [2003] 132 LGERA 1; Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
• Category: Principal judgment
• Parties: Joly Pty Limited (Appellant); Director-General, Department of Environment, Climate Change and Water (Respondent)
• Representation: Counsel; Mr P King; Ms F Sinclair (Appellant); Mr M G Sexton SC; Mr E C Muston (Respondent); Solicitors; Levitt Robinson, Solicitors & Attorneys (Appellant); Department of Environment, Climate Change and Water (Respondent)
• File Number(s): 2010/13646

Decision under appeal

• Citation: [2009] NSWLEC 217
• Date of Decision: 2009-12-18 00:00:00
• Before: Pain J
• File Number(s): 10521 of 2009

Judgment

1 BATHURST CJ: This is an appeal from a decision of a judge of the Land and Environment Court ("the primary judge") making a remediation order directed to the appellant pursuant to s 38 of the Native Vegetation Act 2003. The form of order is attached as a schedule to this judgment.

Background

2 The order made by the primary judge was made as a consequence of an appeal made by the appellant to the Land and Environment Court under s 39 of the Native Vegetation Act 2003 ("the Act") from a decision by Gregory William Roberts, an officer of the Department of Environment, Climate Change and Water, to issue a remediation direction under s 38 of the Act.

3 Section 38 of the Act provides as follows:

"38Directions for remedial work

(1)If the Director-General is satisfied:

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

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

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

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

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

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

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

(3)A direction under this section may be varied or revoked by a further notice.

(4)A person who does not comply with a direction under this section is guilty of an offence.

Maximum penalty:

(a)in the case of a corporation-2,000 penalty units and 200 penalty units for each day the offence continues, or

(b)in any other case-1,000 penalty units and 100 penalty units for each day the offence continues.

(5)If a person fails to comply with a direction under this section, the Director-General may authorise any other person to enter the land and carry out the specified work.

(6)The Director-General may recover the cost of that work from the person given the direction in any court of competent jurisdiction as a debt due by that person to the Crown.

(7)In this section:

lake includes a lagoon, wetland, or other body of still water, whether permanent or temporary.

river includes any stream of water, whether perennial or intermittent, flowing in a natural channel, or in a natural channel artificially improved, or in an artificial channel which has changed the course of the stream."

4 The direction relates to a property "Yarrol" in the Moree Plains. The direction was given as a consequence of what was said to be illegal clearing of part of the property in contravention of s 12 of the Act by a director of the appellant, Mr John Ross Hudson. Mr Hudson was convicted of this offence and fined the sum of $400,000. He was also convicted of the offence of failing to comply with a notice issued under s 36(4) of the Act and fined $8,000 in respect of that offence. Mr Hudson appealed to the Court of Criminal Appeal from these convictions and that appeal was heard concurrently with the appeal the subject of this judgment.

The reasoning of the primary judge

5 The primary judge recognised correctly that as the proceedings before her were in Class 1 of the jurisdiction of the Land and Environment Court, her task was to determine whether a remediation direction ought be made and on what terms. She correctly concluded that her task was to determine the matter anew on the basis of the evidence before her. She concluded correctly that the statutory basis for a remediation direction must be satisfied (judgment par [52]).

6 The primary judge rejected two, what might be described as constitutional, arguments, namely that s 38 of the Act was beyond the power of the State legislature to make orders for the "peace, order and good government" of the State, and that the direction involved an acquisition of property other than on just terms. As any argument based on these propositions was not pressed on appeal, it is unnecessary to deal with her Honour's reasoning on these issues.

7 The primary judge rejected two other contentions raised by Joly. The first was that the clearing which occurred was authorised by the Moree Plains Local Environmental Plan 1995 ("the LEP") which permitted the clearing as part of normal agricultural activities. She accepted the submission of the respondent that the LEP was legislation subordinate to the Act and therefore could not be relied upon to override the provisions against clearing contained in s 38. In that regard she relied on the decision of the Land and Environment Court in Oates v Director General of the Department of Infrastructure Planning and Natural Resources [2004] NSWLEC 164.

8 The primary judge also rejected the proposition that the direction was invalid as it contained a prohibition rather than requiring Joly to carry out positive work. She accepted, consistently with what was said by the Land and Environment Court in Holmes v Director General of the Department of Infrastructure Planning and Natural Resources [2005] NSWLEC 264 and Slack-Smith v Director-General of the Department of Land and Water Conservation [2003] NSWLEC 189; [2003] 132 LGERA 1, that a direction must not contain a prohibition. However, she took the view that each of the requirements of the direction imposed obligations on Joly to undertake positive action. On that basis she rejected this argument although she made some relatively minor changes to the directions sought by the Director General.

The grounds of appeal

9 The appellant relied on the following grounds of appeal:

1The remediation direction effectively prohibited the appellant's reasonable use of its land, such prohibition on the proper interpretation of the statute being beyond the power of the Court or Minister to make pursuant to s 38 of the Act or at all.

2The LEP provided a defence to the appellant such that the clearing was not in breach of s 12 of the Act, in that the works done were in relation to a "development consent" pursuant to Pt 4 of the Environmental Planning and Assessment Act 1976 (NSW).

The submissions of the parties

10 The appellant submitted that s 38 of the Act should be construed strictly. This was said to be for two reasons. First, it was a penal provision and second it significantly impaired longstanding property rights.

11 The appellant submitted that in substance the directions amounted to a prohibition on the user of land which was not within the power of the Court, relying on the decisions of the Land and Environment Court in Holmes v Director General of the Department of Infrastructure Planning and Natural Resources supra and Slack-Smith v Director General of the Department of Land and Water Conservation supra.

12 This submission was elaborated upon in the appellant's submissions in reply and in oral address. In its submissions in reply, the appellant asserted that the direction amounted to a confiscation of the land as it effectively sterilised the use of the land or rendered it commercially unviable. Although it did not press the constitutional ground, namely that the directions amounted to an acquisition of property other than on just terms, it submitted that the legislation should be read having regard to this principle and that the words "repair any damage caused by the clearing", "rehabilitate any land affected" and "ensure that the property will not be damaged ... or further damaged" focus not so much upon a requirement of positive action as compared to a prohibition upon the exercise of power which would have the effect of confiscation of private land and would achieve none of the statutory purposes.

13 Orally, counsel for the appellant reiterated the submission that the effect of the order was to lock up the land, exclude the owner of the land from going onto it or making any reasonable use of it. He also submitted that far from achieving the object of such an order, it had caused further degradation to the land particularly by reason of the spread of the exotic plant, Lippia. In reply, counsel for the appellant contended that the effect of the order was to cut off the land required to be remediated from the rest of the property, making it impossible to get stock from the house paddock to land behind the remediation area, notwithstanding that large parts of the remediated land were not cleared. It was submitted that an order having this effect was beyond power and perhaps disproportionate to a proper exercise of power.

14 So far as the second ground of appeal was concerned, in its written submissions, the appellant pointed out that s 12(1)(a) of the Act authorised clearing done in accordance with a development consent granted in accordance with the Act. It pointed to the fact that development consent was defined in s 4 of the Act as being development consent under Pt 4 of the Environmental Planning and Assessment Act 1979.

15 In that context the appellant relied on s 76(1) of Pt 4 of the Environmental Planning and Assessment Act which provides as follows:

"76(1)If an environmental planning instrument provides that specified development may be carried out without the need for development consent, a person may carry the development out, in accordance with the instrument, on land to which the provision applies."

16 The appellant pointed to the definition of "environmental planning instrument" in s 4 of the Environmental Planning and Assessment Act and submitted that the LEP was such an instrument. It submitted that as that plan entitled use of the land the subject of the remediation order for agriculture without requiring development consent, no consent was required under the Act for the clearing.

17 In its oral submissions it was contended for the appellant that the decision on which the primary judge relied in reaching her conclusion, Oates v Director General of the Department of Infrastructure Planning and Natural Resources supra, was incorrectly decided and that a decision of Sackville J in Minister for the Environment and Heritage v Greentree (No 2) [2004] FCA 741; (2004) 138 FCR 198 was consistent with its contention.

18 The respondent, in her written submissions, accepted that Holmes v Director General of Department Infrastructure Planning and Natural Resources supra was correctly decided and that s 38 did not permit the Director General to give a direction which by its terms prohibited specified activities from being undertaken. She asserted that the direction in question did not do that. She submitted that the fact that the direction may result in a restriction on the use of the land did not make it ultra vires, particularly where that consequence was consistent with the stated purpose of s 38(2) of the Act.

19 So far as the second ground of appeal was concerned, the respondent submitted first that the conviction of Mr Hudson of a contravention of s 12 of the Act provided overwhelming evidence of the jurisdictional fact necessary to give rise to the making of an order under s 38. In those circumstances, the respondent submitted that it was not necessary to deal with the substantive submissions made in respect of ground 2 of the grounds of appeal.

20 However, the respondent submitted that it was incorrect to contend that the LEP created an exception to the consent requirement under s 12 of the Act. She submitted first that it was inconsistent with the clear words of s 12(1)(a) of the Act which expressly contemplated development consent having been granted. In this regard she referred to s 13 of the Act which provided only the Minister could grant consent, s 14 which made it clear that the legislation contemplated an application for development consent being made under the Act and that a modified form of Pt 4 of the Environmental Planning and Assessment Act was to be applied in determining an application. She also relied on the provisions of s 25 of the Act which provided for specific exclusions from its operation, none of which involved an exclusion by virtue of a general use provision in an environmental plan. She submitted that this was consistent with what was said by the Land and Environment Court in Oates v Director General of the Department of Infrastructure Planning and Natural Resources supra to which I have referred above.

Decision

21 The relevant direction is attached to the schedule to this judgment. Recital C sets out the purpose for the direction in a manner consistent with the purposes set out in s 38(1) of the Act.

22 Each direction is expressed in mandatory terms and on its face complies with the limitation on the power to make such directions referred to by Lloyd J in Holmes supra. Each party accepted that decision as correct.

23 The fact that compliance with the direction may incidentally prevent the land being used for the period of the remedial order does not in my view lead to the conclusion that the direction was invalid. In that regard as McClellan CJ at CL pointed out during the course of argument, the words in parenthesis in s 38(2)(b) were not in the subsection at the time it was considered in Holmes. In my opinion, a direction to keep cattle, pigs and vehicles off the remediated area and maintain the fencing are positive steps and ones which could constitute steps to allow the land to regenerate.

24 The appellant also contended that the remediation order was disproportionate to the damage caused. However, even assuming that to be the case that would only lead to the conclusion that the primary judge erred in fact. As the proceedings in the Land and Environment Court were Class 1 proceedings, any appeal to this Court is limited to an appeal on a question of law. It follows that even if the direction was disproportionate to the damage caused, no appeal would lie.

25 Further, the submission by the appellant that what occurred was an acquisition of property does not assist it. First, the appellant abandoned its constitutional argument. Second, even if the requirement to take the steps set out in some way constituted an acquisition, it would not lead to the conclusion that the direction was invalid if the work fell within s 38(2). For the reason given, in my view, it does. Third, in the present case there is no evidence of any acquisition. The appellant's reliance on Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118, in my opinion, was misplaced. In Spencer it was not the restriction on the clearing that was said to constitute the acquisition but rather that the prohibition or restriction on clearing amounted to an acquisition to rights to carbon sequestration and carbon abatement effects that were provided by the existing vegetation on the land (see Spencer v The Commonwealth supra at [43]). No such suggestion was made in the present case.

26 For these reasons, the first ground of appeal is not made out.

27 So far as the second ground of appeal is concerned in my opinion the fact that agricultural activities may be carried out on the land without development consent by virtue of the LEP does not lead to the conclusion that no development consent was required under the Act prior to clearing native vegetation. This is clear from the structure of the Act itself. Section 13 provides the Minister is the consent authority. Section 14 states that Pt 4 of the Environmental Planning and Assessment Act applies subject to Div 1 of Pt 3 of the Act and sets out specific matters to be taken into account in considering whether to grant consent. Section 15 provides for regulations to be made in respect of clearing principles and other matters relating to the granting of such consents.

28 The fact that the definition of "development consent" in s 4 of the Act refers to a development consent under Pt 4 of the Environmental Planning and Assessment Act, does not affect the position.

29 As I indicated, the appellant contended that s 76(1) of the Environmental Planning and Assessment Act in conjunction with the LEP permitted the clearing of the vegetation without consent as such clearing was part of agricultural use.

30 It does not seem to me that the fact that the LEP permitted agricultural use of the land without consent overrides the need for specific consent under the Act prior to clearing native vegetation. First, s 12(1) of the Act makes it clear that the relevant development consent must be in accordance with the Act. Second, the detailed regime in ss 13, 14 and 15 make it clear that a specific consent under the Act in respect of such clearance is required. A right to use the land for agricultural purposes under a local environment plan, in my opinion, is not a consent in accordance with the Act.

31 The decision of Sackville J in Minister for the Environment and Heritage v Greentree (No 2) supra, does not assist the appellant. Greentree involved civil penalty proceedings for contravention of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The respondent in those proceedings relied on s 16(2)(b) of that Act which excluded from its operation access specifically authorised under a law of a State. Such a law was defined in s 43A(2) as a law of the State that has either or both of the objects of protecting the environment or promoting the conservation and ecologically sustainable use of natural resources. Sackville J held that s 76(1) of the Environmental Planning and Assessment Act combined with the LEP authorised clearing and cultivation and slashing vegetation. He concluded at least initially that the actions of the respondent on the land in question were thus authorised under a law of the State. His conclusion was summarised in par [152]:

"[152]In Mercantile Mutual v ASC, the Court was concerned with an instrument that used the expression 'by or under', so that it was tolerably clear that 'under' was intended to be wider than 'by'. Section 43A(1)(b) uses only the word 'under'. Nonetheless, the choice of the word 'under' in s 43A(1)(b) seems to me to be intended to cover the case where the authorisation is 'by' a subordinate instrument, such as a local environmental plan, which is itself made pursuant to an enactment. This conclusion is consistent with the language in s 43(b) of the EPBC Act, which refers to a person being authorised to take action 'by' an instrument made or issued 'under' a particular act. It is also consistent with the evident object of s 43A(1), which is to preserve the specific entitlements of the occupier to use land as they existed at the commencement of the EPBC Act. The section does not require the occupier actually to have acted in relation to the land in a particular way at that date; it is enough that the action is 'specifically authorised' under a law of a State."

32 However, Sackville J went on to consider whether authorisation was also required under the Native Vegetation Conservation Act 1997 (the predecessor to the Act). That Act by s 21(2) prohibited the clearance of native vegetation without a development consent. Development consent was defined in the same way as it is defined in the Act. That Act like the present Act excluded from its operation land to which a native vegetation plan applied and also to what was described as "State protected land". However, s 22 of that Act prohibited the clearance of State protected land.

33 His Honour held that consent under the Native Vegetation Conservation Act was required. His conclusion was as follows (at [167]):

"[167]In the end, it does not matter whether the Windella Ramsar site was 'State protected land' or not. If it was not, s 21(2) applied to the site. If it was, the evidence satisfies me that no development consent was in force at the relevant time authorising clearing of the site. Thus if part of the site was protected State land it would seem that authorisation was required on 16 July 2000 (the date of commencement of the EPBC Act) for clearing of that portion of the site."

34 The first part of the judgment of Sackville J does not assist the appellant. The second part is directly contrary to the submissions which it made. His Honour's conclusion as to the effect of the Environmental Planning and Assessment Act and the LEP on the Commonwealth legislation expressly relied on the use of the word "under" in s 43A(1)(b) of the Commonwealth Act. There is no equivalent statutory provision in the present case. It seems to me self-evident that his latter finding that consent was required under the Native Vegetation Conservation Act 1997, notwithstanding the provisions of the LEP, is directly contrary to what has been suggested by the appellant in the present case.

35 For these reasons, ground 2 of the appeal has not been made out.

36 The appellant sought by Notice of Motion to adduce additional evidence. The evidence consisted of an affidavit of Lynn Hudson sworn 30 November 2011. Although the application to adduce the fresh evidence was not specifically averted to in oral argument, an affidavit from the solicitor for the appellant stated that the material was tendered as evidence that the effect of the remediation order had the consequence of making the Lippia infestation worse and preventing the regeneration of native vegetation. It was submitted that if the Court was to exercise its jurisdiction to redetermine the remediation orders, it would be necessary for it to have regard to that evidence.

37 As in my view the remediation order should not be redetermined, the evidence has no relevance to the appeal and leave to adduce it should not be granted. Further, if in fact what is contended in the evidence sought to be adduced is correct, it would be open to the appellant to seek a variation of the direction under s 38(3) of the Act.

38 It follows, in my view, that the appeal should be dismissed with costs.

39 WHEALY JA: I agree with Bathurst CJ.

40 McCLELLAN CJ at CL: I agree with Bathurst CJ.

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Decision last updated: 11 May 2012