Burns and Commissioner Of Soil And Land Conservation

Case •

[2006] WASAT 83

•

30 MARCH 2006

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   DEVELOPMENT & RESOURCES

ACT: SOIL AND LAND CONSERVATION ACT 1945 (WA)

CITATION:   BURNS and COMMISSIONER OF SOIL AND LAND CONSERVATION [2006] WASAT 83

MEMBER:   MR D R PARRY (SENIOR MEMBER)

HEARD:   23 FEBRUARY 2006

DELIVERED          :   30 MARCH 2006

FILE NO/S:   DR 532 of 2006

BETWEEN:   BRIAN JOHN BURNS

Applicant

AND

COMMISSIONER OF SOIL AND LAND CONSERVATION
Respondent

Catchwords:

Soil and land conservation ­ Application for discharge of soil and land conservation notice ­ Notice imposed in response to proposal to clear land ­ Proposal to clear referred to Environmental Protection Authority for environmental assessment ­ Preliminary issues ­ Whether a decision to discharge the notice could have the effect of causing or permitting the proposal to be implemented ­ Whether Tribunal precluded from discharging notice ­ Words and phrases: "could"

Legislation:

Environmental Planning and Assessment Act 1979 (NSW)
Environmental Protection Act 1986 (WA), s 3(1), s 4A, s 5, s 37B(1), s 38, s 38(5), s 39A(3)(b), s 39A(3)(c), s 39A(4), s 40(1), s 41, s 41(2), s 41(2)(c), s 41(3), s 44, s 45, s 45(1)(b), s 45(3), s 45(5), s 45(7), s 51C(b), s 51E(5)(a), s 51F(1), s 100, s 100(1), Sch 6 item 2
Environmental Protection Amendment Act 2003 (WA)
Evidence Act 1995 (NSW), s 55
Land and Environment Court Act 1979 (NSW), s 39(6)
Local Government Act 1993 (NSW)
Soil and Land Conservation Act 1945 (WA), s 4, s 13(a), s 32, s 34, s 34A, s 35(2), s 38, s 39

State Administrative Tribunal Act 2004 (WA), s 7, s 9, s 29(1), s 107

Result:

Preliminary issues answered as follows:

  1. "Yes".

  2. "Yes".

Category:    B

Representation:

Counsel:

Applicant:     Mr JR Ferguson (by leave)

Respondent:     Mr RM Mitchell with Ms JM Hebiton

Solicitors:

Applicant:     N/A

Respondent:     State Solicitor's Office

Case(s) referred to in decision(s):

Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) (1981) 147 CLR 297

Greendene Development Corporation v Environmental Protection Authority (2003) 28 WAR 107

Nye v New South Wales [2002] NSWSC 1270

Re Town Planning Appeal Tribunal; ex parte Environmental Protection Authority (2003) 27 WAR 374

Case(s) also cited:

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129

Bropho v State of Western Australia (1990) 171 CLR 1

Goodwin v Phillips (1908) 7 CLR 1

Mitchell v Scales (1907) 5 CLR 405

Newcastle City Council v GIO General Ltd (1997) 191 CLR 85

R v Chalak [1983] 1 NSWLR 282

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of the Tribunal's decision

  1. The Commissioner of Soil and Land Conservation raised preliminary issues in review proceedings arising out of the Commissioner's decision not to discharge a soil conservation notice.  The notice was imposed in response to Mr Burns' proposal to clear 1000 hectares of land.  It required Mr Burns to refrain from clearing any vegetation.  After issuing the notice, the Commissioner referred Mr Burns' proposal to the Environmental Protection Authority (EPA) to decide whether to undertake an environmental assessment.  The EPA subsequently notified the Tribunal that it had decided to assess the proposal.

  2. The Commissioner argued that, because the EPA had notified the Tribunal of its decision and because of the referral itself, the Tribunal did not have power to discharge the notice until it received an authority from the Minister for the Environment.

  3. The Tribunal formulated the preliminary issues as follows:

    1.Could a decision to discharge the notice have the effect of causing or allowing the proposal to clear to be implemented?

    2.Is the Tribunal precluded from discharging the notice until the Minister for the Environment serves an authority permitting such a decision to be made?

  4. The Tribunal determined that a decision to discharge the soil conservation notice "could" have the effect of allowing the clearing proposal to be implemented and would have that effect if all other approvals were granted.  The legislation precluded a decision­making authority from discharging the notice even though a clearing permit was also required in order to lawfully carry out the clearing.

  5. The Tribunal also determined that it is a "decision­making authority" that had been given notice by the EPA and was, therefore, precluded from discharging the notice until authorised by the Minister.  Furthermore, as the Commissioner was a "decision­making authority" precluded from discharging the notice, the Tribunal, in reviewing the Commissioner's decision, was correspondingly limited in its power.

  6. Thus, the preliminary issues were each answered "Yes".

Introduction

  1. The Commissioner of Soil and Land Conservation (Commissioner) has raised, in essence, two preliminary issues for determination in review proceedings which are pending before the Tribunal.

  2. The substantive proceedings involve an application brought by Mr Brian Burns pursuant to s 39 of the Soil and Land Conservation Act 1945 (WA) (SLC Act) for review of the decision of the Commissioner not to discharge a soil conservation notice under s 38 of the SLC Act. Section 38 provides that a person who is bound by a soil conservation notice may "from time to time apply in writing to the Commissioner to have the notice discharged" if the notice "has been fully complied with or is no longer necessary or any other just cause exists for discharging it".

  3. The statutory functions of the Commissioner include "the prevention and mitigation of land degradation": SLC Act s 13(a). The term "land degradation" is defined in s 4 of the SLC Act to include "the removal … of natural or introduced vegetation, that may be detrimental to the present or future use of land". Section 32 of the SLC Act provides, among other things, that "[w]henever the Commissioner is of the opinion that as a result of … clearing or intended clearing … on any land, land degradation is occurring or is liable or likely to become liable to occur on that land or elsewhere the Commissioner may … by notice in writing served on each owner … direct each or any one or more of the persons bound by the soil conservation notice to … refrain from clearing any land specified in the notice … ".

  4. Section 34A of the SLC Act provides for the registration of a memorial on title of a soil conservation notice imposed under s 32. Section 35(2) of the SLC Act creates an offence where a person bound by a soil conservation notice contravenes or fails to comply with the notice.

  5. The soil conservation notice which is the subject of these proceedings was originally imposed on Mr Burns as the owner of the land known as Kent Location 1664 on 28 April 1999.  The notice was removed and reimposed in an amended form on 6 December 2001.  The notice relates to an area of 1421.9 hectares which is approximately 99.8% of Kent Location 1664.  As originally imposed the notice directed Mr Burns to "refrain from clearing" the land.  In its amended form the notice directs Mr Burns to "refrain from clearing any vegetation" and "refrain from undertaking any agricultural pursuit" on the land.

  6. On 14 February 1996 Mr Burns notified the Commissioner that he intended to clear approximately 441 hectares of native vegetation on Kent Location 1664.  On 6 August 1996 the Commissioner objected to this proposal.  On 30 May 1997 the Commissioner imposed a soil conservation notice directing Mr Burns not to clear an identified area of 453.5 hectares or approximately 31.8 per cent of Kent Location 1664.

  7. On 19 November 1998 Mr Burns notified the Commissioner of his intention to clear 1000 hectares of native vegetation on Kent Location 1664 (the proposal). It appears that this area was essentially the whole of Kent Location 1664 excluding the land the subject of the notice imposed on 30 May 1997. On 15 February 1999 the Commissioner objected to the proposal. On 28 April 1999 the Commissioner imposed the notice referred to at [11] above over this area and over the area the subject of the earlier notice.

  8. On 5 July 1999 Mr Burns appealed pursuant to s 34 of the SLC Act to the Minister for Primary Industry and Fisheries against the notice imposed on 28 April 1999. Mr Burns described the appeal as "against the clearing ban imposed on 'my' land, Kent 1664".

  9. While the appeal was pending the Commissioner apparently formed the opinion that the proposal appeared to be "a significant proposal" within the meaning of s 37B(1) of the Environmental Protection Act 1986 (WA) (EP Act). By letter dated 6 October 1999 the Commissioner referred the proposal to the Environmental Protection Authority (EPA) pursuant to s 38(5) of the EP Act for the EPA to decide whether to assess it under Pt IV of the Act. The referral letter from the Commissioner to the Chairman of the EPA made reference to the then pending appeal before the Minister for Primary Industry and Fisheries.

  10. On 22 October 1999 the Chairman of the EPA wrote to the Minister for Primary Industry and Fisheries referring to the appeal and stating that "in the event that you are considering upholding the appeals [sic] in part or whole, the EPA will be required to consider the environmental effect of the proposal (partial or full clearing) and determine whether formal assessment under Part IV of the Environmental Protection Act 1986 … is warranted".  The Chairman requested the Minister to "please advise the Authority prior to issuing your determination of the appeals [sic] so that the Authority can make its determination".  The letter also contained the following statement:

    "Under the EP Act, a Decision­Making Authority (including any responsible Government Minister) is required to refer any proposal which, if implemented, would have a significant effect on the environment and must not make any decision that could have the effect of causing the proposal to be implemented until duly authorised under the Act."

  11. On 14 March 2000 the Minister dismissed the appeal.  It appears that the EPA did not then proceed to consider whether the proposal should be assessed under Pt IV of the EP Act.

  12. On 24 January 2005 Mr Burns applied to the Commissioner pursuant to s 38 of the SLC Act to have the notice imposed on 28 April 1999 and then removed and reimposed on 6 December 2001 discharged.  On 29 April 2005 the Commissioner declined to discharge the notice.  Mr Burns subsequently lodged an application for review of this decision.

  13. By letter dated 22 February 2006 the EPA notified the "Registrar" (which I take to be a reference to the Executive Officer) of the Tribunal that it had decided to assess the proposal, had concluded that "it is incapable of meeting the EPA's environmental objectives" and consequently had set a level of assessment at "Proposal Unlikely to be Environmentally Acceptable".  The letter includes the following statement:

    "The Environmental Protection Act 1986 requires that no decision should be made to allow or implement this proposal until the EPA has reported to the Minister for the Environment, and the Minister has authorised implementation or otherwise."

  14. In this context the Commissioner has raised preliminary issues which can be conveniently stated as follows:

    1.Could a decision to discharge the soil conservation notice the subject of the review have the effect of causing or allowing the proposal to clear 1000 hectares on Kent Location 1664 to be implemented?

    2.Is the Tribunal precluded from discharging the soil conservation notice until the Minister for the Environment serves an authority permitting such a decision to be made?

  15. The Tribunal will address each of these issues in turn.

Could a decision to discharge the soil conservation notice have the effect of causing or allowing the proposal to be implemented?

  1. This issue turns on the proper interpretation and application of s 41 of the EP Act. Section 41 provides, in part, as follows:

    "(2)A decision­making authority that ­

    (a)has referred a proposal to the [EPA] under, or in compliance with a requirement made under, section 38; …

    shall not make any decision that could have the effect of causing or allowing the proposal to be implemented until ­

    …

    (d) an authority is served on it under section 45(7) …

    (3)Without limiting subsection (2), a decision­making authority that has been given notice under section 39A(3)(c) or (4) that a proposal is going to be or is being assessed is not to make any decision that could have the effect of causing or allowing the proposal to be implemented without having had an authority under section 45(7) served on it." (Emphasis added.)

  2. Sections 44 and 45 of the EP Act require the EPA to prepare a report on the outcome of its assessment of a proposal that it has decided to assess, the publication of the report, consultation between the Minister for the Environment and the decision­making authority, agreement between the Minister and the decision­making authority and, in the event of a failure to agree, a decision by the Governor or an appeals committee in relation to whether the proposal should be implemented. If the result of the agreement or decision is that the proposal may be implemented and the Minister is satisfied that there is no reason why the proposal should not be implemented, s 45(7) requires the Minister to "cause to be served on the decision­making authority precluded by section 41 from making any decision that could have the effect of causing or allowing that proposal to be implemented an authority in writing permitting such a decision to be made".

  3. Mr RM Mitchell, counsel who appears with Ms JM Hebiton on behalf of the Commissioner, acknowledges that the discharge of the notice by the Tribunal would not be sufficient in itself to permit the lawful implementation of the proposed clearing. In particular, the Commissioner accepts that, in addition to the discharge of the notice under s 38 of the SLC Act, Mr Burns would require either a clearing permit under s 51E(5)(a) of the EP Act or the publication of a statement under s 45(5) of the EP Act to the effect that there has been an agreement or a decision under s 45 that the proposal may be implemented (in which case a clearing permit is not required under s 51E(5)(a): see s 51C(b) and Sch 6 item 2).

  4. However, the Commissioner contends that, on its proper interpretation, s 41 of the EP Act precludes a decision-making authority from discharging the notice where the discharge is a necessary but not a sufficient condition for the lawful implementation of the proposal.

  5. The Tribunal considers that two textual indications in the EP Act referred to by Mr Mitchell strongly support the correctness of the Commissioner's contention.

  6. First, s 41 precludes "any decision that could have the effect of causing or allowing the proposal to be implemented" (emphasis added).  According to The Macquarie Dictionary (Macquarie, 4th Edition, 2005), the word "could" can refer, and the Tribunal finds that it relevantly does refer, "to a potential event or situation": page 332. As the Commissioner correctly submits, "[t]hat language is inconsistent with [s 41] only applying to a decision which will remove the last impediment to the lawful implementation of a proposal. A decision to discharge the Notice could have the effect of allowing the proposal, and will have that effect if other required approvals are granted". Reading the word "could" as referring to a potential event or situation and thus having broad effect is consistent with the express object of the EP Act "to protect the environment of the State" having regard to the principles of ecologically sustainable development (EP Act s 4A) and the supremacy of the EP Act over inconsistent provisions of other written laws (EP Act s 5).

  7. Similarly, in the context of s 55 of the Evidence Act 1995 (NSW) which provides that evidence is relevant if it "could" rationally affect the assessment of the probability of a fact in issue, O'Keefe J held in Nye v New South Wales [2002] NSWSC 1270 at [13] that "'could' … means that 'it is possible that it may'". His Honour noted that, read in such a way, s 55 "has a wide ambit in relation to admissibility, which is consistent with the general policy that is to be found in Pt 3 of the Evidence Act".

  8. Second, s 51F(1) of the EP Act provides, in part, as follows:

    "If an application for a clearing permit made under section 51E(1) is related to a proposal which has been referred to the [EPA] under section 38, the CEO shall not perform any duty imposed on the CEO by section 51E(5) [namely consideration of comments from any public authority or person and determination of whether to grant a clearing permit and, if so, subject to what conditions] ­

    (a)while any decision­making authority is precluded by section 41 from making any decision which could have the effect of causing or allowing that proposal to be implemented … ."

  9. Section 51F(1) clearly contemplates that s 41 precludes a decision­making authority from making a decision in relation to a proposal involving clearing even though a clearing permit is also required in order to lawfully carry out the proposal. "The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole": per Mason and Wilson JJ in Cooper Brookes (Wollongong) Pty Ltd v The Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 320. The language of s 51F(1) leaves no doubt that s 41 precludes a decision­making authority from discharging a soil conservation notice that directs its recipient to refrain from clearing in circumstances where it has referred a proposal to clear the land the subject of the soil conservation notice to the EPA under s 38 of the EP Act or has been given notice by the EPA that the proposal is going to be assessed.

  10. Mr JR Ferguson who, by leave, represents Mr Burns in the proceedings, makes essentially four submissions as to why s 41 does not preclude a decision­making authority from discharging the notice in the circumstances of this case.

  11. First, Mr Ferguson submits that the clearing is "a separate and unrelated issue" to the application before the Tribunal for the discharge of the notice.  If Mr Burns seeks approval to clear "that matter will have to be resolved elsewhere, maybe in another jurisdiction".

  12. However, the factual background set out in the introduction to these reasons shows that the notice was imposed in response to Mr Burns' proposal to clear 1000 hectares and in substitution for the earlier notice imposed on 30 May 1997 (which was imposed in response to Mr Burns' proposal to clear basically all other parts of Kent Location 1664).  The notice requires Mr Burns to refrain from clearing including the clearing referred to the EPA.  Moreover, in considering whether to discharge the notice, the Tribunal would inevitably have to consider whether the clearing which the notice requires Mr Burns to refrain from may be detrimental to the present or future use of the land.  Although the application for review before the Tribunal relates to the discharge of a soil conservation notice rather than an application to clear, in substance, the Tribunal would be required to consider the proposal which the EPA has determined to assess.

  13. Second, Mr Ferguson submits that the application to the Tribunal for the discharge of the notice does not qualify as a "project, plan, programme, policy, operation, undertaking or development or change in land use, or amendment of any of the foregoing … " and, therefore, does not satisfy the definition of "proposal" for the purposes of the EP Act.  This submission is correct although the underlying application to the Commissioner to discharge the notice might constitute a "change in land use".  More fundamentally however, the "proposal" which the Commissioner referred to the EPA is Mr Burns' proposal to clear 1000 hectares, not his application for review to the Tribunal or his application to the Commissioner to discharge the notice.  The proposal to clear 1000 hectares is undoubtedly a "project, plan, programme … [or] operation" and, therefore, a "proposal" within the meaning of the EP Act.  The proposal might also be a "change in land use".

  1. Third, Mr Ferguson submits that the only consequence of Mr Burns' success in the review would be the removal of the memorial placed on title pursuant to s 34A of the SLC Act. This submission is incorrect. As the Commissioner submits the effect of discharging the notice would be to avoid the proposed clearing constituting an offence under the SLC Act and thereby to allow the proposal to be implemented if all other approvals were also obtained.

  2. Finally, Mr Ferguson seeks to advance a purposive interpretation of the State Administrative Tribunal Act 2004 (WA) (SAT Act). He submits that the purpose or object of the SAT Act "is to review all Government based decisions made by a primary decision­maker without any qualification or restriction in a timely manner". He submits that, in consequence, the EPA "is expressly excluded from entertaining or even being involved with the process of 'review'".

  3. This submission is misconceived.  Although in its determination of the application for review the Tribunal would be concerned, in part, with the impacts of the same clearing as that which is the subject of the proposal referred to the EPA, the EPA has not been asked to undertake nor is it involved in a review of the decision not to discharge the notice.  However, a decision by the Tribunal to discharge the notice "could have the effect of … allowing the proposal [which the EPA has decided to assess] to be implemented".

  4. It follows that the answer to the first preliminary issue identified at [20] above is "yes".

Is the Tribunal precluded from discharging the notice until the Minister serves an authority?

  1. In Re Town Planning Appeal Tribunal; ex parte Environmental Protection Authority (2003) 27 WAR 374 the Full Court of the Supreme Court held that the Town Planning Appeal Tribunal was a "State … instrumentality" within the definition of a "public authority" in s 3(1) of the EP Act and consequently a "decision­making authority" as defined in that section: at [7] ­ [9], [26] ­ [42], [84] ­ [102]. The term "decision­making authority" is defined in s 3(1) of the EP Act to mean for the purposes of the Act, unless the contrary intention appears, "a public authority empowered by or under … a written law … to make a decision in respect of any proposal … ". The term "public authority" is defined to include in the EP Act, unless the contrary intention appears, a "State … instrumentality". The Court also held that s 41 and s 45(7) do not disclose a "contrary intention" to the defined meaning of "decision­making authority". The Court recognised that a contrary intention to the defined meaning of "decision­making authority" was disclosed in s 45(1)(b), (3) and (5) (consultation by the Minister with a decision­making authority) and s 100 (appeal by a decision­making authority to the Minister) with the result that the Town Planning Appeal Tribunal was not a "decision­making authority" for the purposes of those sections: at [12], [62], [63], [65] and [132]. However, to quote McKechnie J at [134], the Town Planning Appeal Tribunal "falls directly within s 41 and it is not to the point that in other sections a contrary intention may be construed".

  2. The Tribunal is unable to discern a sufficient distinction between it as established under s 7 of the SAT Act and the Town Planning Appeal Tribunal as established under Pt V of the Town Planning and Development Act 1928 (WA) such that Re Town Planning Appeal Tribunal; ex parte Environmental Protection Authority could be distinguished.

  3. Although there is strength in Mr Ferguson's contention that the State Administrative Tribunal, being an independent review tribunal under judicial leadership (SAT Act s 107) and being required to "review decisions … according to the substantial merits of the case" and to "act as speedily … as is practicable" (SAT Act s 9), should be able to conduct reviews within its jurisdiction without having to await authorisation from the Executive, it follows from the decision of the Full Court that the Tribunal cannot discharge the notice in this case until authorisation is granted by the Minister.

  4. This limitation on the Tribunal is to be contrasted with the authority conferred on the Land and Environment Court of New South Wales which exercises similar jurisdiction to the Tribunal in the development and resources stream.  The Land and Environment Court is authorised to determine an appeal against a decision of a council within the meaning of the Local Government Act 1993 (NSW) or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 (NSW) whether or not any concurrence or approval required before the council or consent authority could approve the application has been granted: Land and Environment Court Act 1979 (NSW) s 39(6). If the Tribunal were similarly empowered to make a decision which could have the effect of allowing a referred proposal to be implemented, the EPA and/or the Minister for the Environment could be granted a right of intervention under the SAT Act.

  5. Mr Mitchell correctly submits that the letter from the EPA to the Tribunal dated 22 February 2006 constitutes "notice under [s 39A(4)] that a proposal is going to be or is being assessed" within the meaning of s 41(3). Section 39A(4) expressly permits the EPA to give written notice that a proposal is going to be assessed to a relevant decision­making authority which has not been given notice as required by s 39A(3)(c). Section 39A(3)(c) provides that the EPA is to give written notice of whether it is going to assess a proposal to any relevant decision­making authority within 28 days after the referral of a proposal. The clear implication from these provisions is that while the EPA is required to determine whether to assess a proposal within 28 days of referral and may, therefore, be the subject of a mandatory injunction if it has not made a determination within this period, it is nevertheless able to determine whether to assess a proposal after the 28 day period has elapsed. Moreover, s 39A(5) makes explicit that the EPA may give notice to a relevant decision­making authority as to whether or not it is going to assess a proposal at any time before a report on the proposal is given to the Minister under s 44.

  6. Therefore, even though a period of over six years appears to have elapsed in this case between the referral and the decision to assess the proposal, the EPA was authorised by the current provisions of the EP Act to make and communicate its decision in February 2006.  Moreover, the Full Court of the Supreme Court determined in Greendene Development Corporation v Environmental Protection Authority (2003) 28 WAR 107 at [63] that the EPA was authorised under s 40(1) of the EP Act as it stood at the date of the referral in this case and until the amendment of s 40(1) and the insertion of s 39A(3) ­ (5) by the Environmental Protection Amendment Act 2003 (WA) to determine to assess a proposal after the 28 day period.

  7. It follows that the Tribunal is precluded from making a determination to discharge the notice because it is "a decision­making authority that has been given notice under [s 39A(4) of the EP Act] that a proposal [in respect of which it is empowered to make a decision by discharging the notice] is going to be or is being assessed": EP Act s 41(3).

  8. Furthermore, the Tribunal is precluded from making a determination to discharge the notice by s 41(2) of the EP Act. Section 29(1) of the SAT Act provides that the Tribunal has "functions and discretions corresponding to those exercisable by the [original] decision-maker in making the reviewable decision". The Commissioner, having referred the proposal to the EPA, is a decision­making authority that is precluded by s 41(2) from discharging the notice until an authority is served by the Minister. In the absence of any additional power not available to the Commissioner, the Tribunal in reviewing the Commissioner's decision is limited to the functions and discretions exercisable by him in making the reviewable decision.

  9. The answer to the second preliminary issue identified at [20] above is "yes".

Conclusion

  1. The Tribunal has determined that a decision to discharge the soil conservation notice "could" have the effect of allowing Mr Burns' proposal to clear 1000 hectares on Kent Location 1664 to be implemented.  It would have that effect if all other necessary authorisations were obtained.

  2. The Tribunal has also determined that it is precluded from discharging the soil conservation notice until the Minister for the Environment serves an authority permitting such a decision to be made. The Tribunal is a "decision­making authority" for the purposes of 41 and s 45(7) of the EP Act that has been given notice by the EPA that it will assess the proposal. Furthermore, in the absence of any additional power not available to the Commissioner, the Tribunal is subject to the same limitations as the Commissioner in making the reviewable decision.

Order

  1. The Tribunal makes the following order:

    The preliminary issues are answered as follows ­

    1.Issue:  Could a decision to discharge the soil conservation notice the subject of the review have the effect of causing or allowing the proposal to clear 1000 hectares on Kent Location 1664 to be implemented?

    Answer:  Yes.

    2.Issue:  Is the Tribunal precluded from discharging the soil conservation notice until the Minister for the Environment serves an authority permitting such a decision to be made?

    Answer:  Yes.

I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D R PARRY, SENIOR MEMBER

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Cases Cited

4

Statutory Material Cited

8

Nye v New South Wales [2002] NSWSC 1270
Cody v J H Nelson Pty Ltd [1947] HCA 17
Re Town Planning Appeal Tribunal; ex parte Environmental Protection Authority [2003] WASCA 248